Cho High 2010Gu2519 ( October 24, 2011)

It is difficult to recognize as having cultivated with one-half or more of the farming works with one-half or more own labor;

The application of the provisions of the Enforcement Decree, which clearly define the meaning of "direct farming" that must be cultivated with one-half or more of the farming works, to the transferred portion after the establishment of the Enforcement Decree clause, is not sufficient to recognize that the farming works have been cultivated with one-half or more own labor in light of the fact that the manufacturer operates the manufacturing company, employs a third party, and cultivates farmland.

Article 69 of the Restriction of Special Taxation Act

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

2011Guhap3878 Revocation of Disposition of Imposing capital gains tax

KimA

Head of the Daegu Tax Office

May 2, 2012

May 23, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of capital gains tax of KRW 000 for the year 2008 against the Plaintiff on July 5, 2010 shall be revoked.

1. Details of the disposition;

A. On March 5, 199, the Plaintiff acquired 16,761 square meters (hereinafter “the instant farmland”) prior to 00 Ori-ri, Pari-ri, Pari-ri-ri, Gari-ri-ri, Gari-ri-ri, Gari-ri-ri, and sold 00 won to MaximumD on May 27, 2008.

B. On July 31, 2008, the Plaintiff filed a preliminary return of capital gains tax on the farmland of this case with the Defendant on the reason that he directly cultivated the farmland of this case for not less than eight years, and filed an application for reduction of capital gains tax pursuant to Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 9276 of Dec. 29, 2008, hereinafter referred to as the "former Restriction of Special Taxation Act"), but the Defendant denied the reduction or exemption of capital gains tax on self-farmland for not less than eight years and denied the special deduction for long-term possession, and imposed capital gains tax on July 1, 2010 by applying the heavy tax rate of capital gains tax (60%) (hereinafter referred to as the "instant disposition").

C. On July 29, 2010, the Plaintiff filed an appeal with the Tax Tribunal on July 29, 201, but August 201.

24. was dismissed.

[Ground of Recognition] The non-contentious facts, Gap evidence 1 to 3, and Eul evidence, and the whole purport of the pleading

2. The plaintiff's assertion is as follows.

A. Applying the definition of "direct farming" under Article 66 (12) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 19329 of Feb. 9, 2006) to the transfer after the amendment of the above Enforcement Decree is in violation of the principle of prohibition of retroactive taxation because it infringes on the existing taxpayer's trust.

B. The Plaintiff only employed the E and carried out some farming operations, and directly cultivated the farmland of this case for not less than 8 years, and thus, the instant disposition is unlawful.

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. Judgment on the Plaintiff’s assertion No. 2. A

(1) According to Article 69 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act, the tax amount equivalent to 100/100 of the transfer income tax shall be reduced or exempted for the income accruing from the transfer of land prescribed by the Presidential Decree among the land which is subject to agricultural income tax, which is directly cultivated by a person who resides in a location of such land for not less than eight years. According to Article 66 (12) of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 20854, Jun. 20, 2008; Presidential Decree No. 19329, Feb. 9, 2006; Presidential Decree No. 19329, Feb. 9, 2006; Presidential Decree No. 20135, Feb. 9, 2006; Presidential Decree No. 2015, Feb. 9, 200).

(2) According to the Addenda to the Enforcement Decree of the Restriction of Special Taxation Act (No. 19329, and Article 10 of the Enforcement Decree of the Restriction of Special Taxation Act), and the amended provisions of Article 66(12) of the Enforcement Decree of the above Enforcement Decree shall apply from the transfer of real estate after February 9, 2006, the enforcement date of the above provision. Since the Plaintiff’s liability for capital gains tax due to the transfer of real estate is established at the time of transfer of real estate, even if the Plaintiff was excluded from those subject to tax abatement or exemption under the previous Act due to the enforcement of the newly established provision, determination of the scope of tax abatement or exemption under the Enforcement Decree at the time of transfer cannot be avoided unless there is any special measure (see Supreme Court Decision 89Nu1858, Sept. 12, 1989). The Defendant’s imposition of capital gains tax under the previous provision of the Enforcement Decree on the transfer of real estate under the previous Act is justifiable, and the Plaintiff’s assertion is without merit.

B. Judgment on the Plaintiff’s assertion No. 2.B.

(1) The principle of strict interpretation derived from the principle of no taxation without law is not only applicable to taxation requirements, but also applicable to cases meeting the requirements of non-taxation and tax reduction and exemption, and expanding or analogical interpretation of non-taxation requirements or tax reduction and exemption requirements as favorable to the taxpayers without reasonable grounds may result in a violation of the principle of fair taxation, which is the basic ideology

As such, it should not be permitted (see, e.g., Supreme Court Decision 2005Da19163, May 25, 2006). The following facts are proven by the claimant (see, e.g., Supreme Court Decision 92Nu11893, Jul. 13, 1993).

(2) In light of the following circumstances that are considered by comprehensively considering the descriptions of evidence Nos. 2, and evidence Nos. 5 through 11, evidence Nos. 14-2, evidence Nos. 14-2, and evidence Nos. 15, and evidence Nos. 15-2, and the result of this court's inquiry into the National Forest Science Institute, it is insufficient to recognize that the Plaintiff cultivated 1/2 or more of the farming work with its own labor, and there is no other evidence to support this otherwise, the Plaintiff's assertion is without merit.

(가) 원고는 1981. 4. 27.부터 현재까지 경북 고령군 쌍림면 OO리 000 소재 낚시대， 골프용품 제조 및 도매업체인 주식회사 FF를 경영하고 있고， 1993. 12. 1.부터 현재까지 경남 함양군 함양면 OO리 000 소재 낚시대 제조업체인 주식회사 QQ을 경영하고 있다.

(B) The Plaintiff employed E from around 2000 to around 2006 and paid 000 won monthly salary for the instant farmland from 07:30 to 18:00 each day except Sundays.

(C) According to the certificate of the entry into and departure from Korea of the Plaintiff (No. 11), and the number of monthly overseas stay of the Plaintiff is about 23 days after 205 average.

5. Conclusion

Then, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.