Daegu High Court-2015-Nu6379 ( December 02, 2016)

Cho High-2014-Tgu Office-4735 ( December 04, 2014)

Notice of designation of land scheduled for replotting shall be given on the designated date of land scheduled for replotting prescribed by the Restriction of Special Taxation Act when compiling related facts, etc.

The notification of the designation of the land scheduled for replotting is the date of designation of the land scheduled for replotting when compiling the fact, etc. of notification of the designation of the land scheduled for replotting under the Land Readjustment Projects Act, notwithstanding any title, and the instant land transferred after three years from the date of such designation

Article 69 of the Restriction of Special Taxation Act

Article 66 of the Enforcement Decree of the Restriction of Special Taxation

2016du64302 Revocation of revocation of capital gains tax rectification

○○ Other ○○

○○ Head of tax office

Daegu High Court Decision 2015Nu6379 Decided December 2, 2016

October 26, 2017

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. The main sentence of Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 13560, Dec. 15, 2015) provides that "income accrued from the transfer of land prescribed by Presidential Decree among the land directly cultivated by a resident in a location of land for at least eight years shall be reduced or exempted in full from capital gains tax." Article 66(4) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26922, Jan. 22, 2016) upon delegation from the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26922, Jan. 22, 2016) provides that "farmland which he/she cultivated for at least eight years from the date of acquisition to the date of transfer" and Article 66(5) of the Enforcement Decree of the same Act excludes "farmland which has been designated as a land other than a replotting disposition prior to the date of such designation" (hereinafter referred to as "the instant provision").

Meanwhile, Article 56 (3) of the former Land Readjustment Project Act (amended by Act No. 6252, Jan. 28, 2000; hereinafter the same) provides that when an implementer designates a reserved land for replotting, the related landowner, lessee, etc. shall be notified of the location and area of the reserved land for replotting and the effective date of the designation of the reserved land for replotting.

2. After citing the reasoning of the judgment of the court of first instance, the court below acknowledged the facts as stated in its holding, and considering the following circumstances, it is reasonable to view that the Plaintiffs were excluded from capital gains tax reduction and exemption pursuant to the instant provisions since they transferred the instant land after three years from the date of designation of the land scheduled for substitution, in cases where the land, other than the farmland

Even if the land was not designated, it was determined that the land of this case was not farmland at the time of the transfer date, and thus does not constitute reduction and exemption of capital gains tax.

A. The instant association made the instant notification to its members, including the Plaintiffs, stated Article 56(3) of the former Land Readjustment Projects Act on the notification of the designation of the land scheduled for substitution as a ground provision, and attached a protocol of the land scheduled for substitution with the location and area of the land scheduled for substitution specified in accordance with the authorization conditions of the salvable Gun. It is reasonable to deem that such notification does not merely constitute the notification

B. The instant notice does not separately indicate the effective date of the designation of the land to be reserved, but in such cases, it shall be deemed that the three-year period prescribed in the instant provision is calculated from the time the landowner, etc. was notified of the designation of land to be reserved

C. There is no evidence to acknowledge that the instant land was designated as a reserved land for replotting as farmland, and the said land was designated as a reserved land for replotting, other than farmland, such as a housing site and commercial land.

D. Also, it seems that the instant land was not actually used for farming at the time of transfer.

3. Examining the relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the designation of reserved land and the exemption from capital gains tax.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.