Whether “Land owned by a person who transferred before December 31, 2006, as farmland owned by him/her at the time of transfer pursuant to Article 6(2)4 of the Farmland Act” under Article 168-14(3)5 of the former Enforcement Decree of the Income Tax Act, and Article 83-5(3)2 of the former Enforcement Rule of the Income Tax Act, includes farmland in an urban area, as farmland that is transferred until December 31, 2009 as farmland owned by him/her at the time of transfer under Article 6(2)4 of the Farmland Act (affirmative)

Article 104-3 (1) 1 (a), (b), and (2) of the former Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007); Article 168-14 (3) 5 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008; hereinafter the same shall apply); Article 83-5 (3) 2 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 15 of Apr. 29, 2008; hereinafter the same shall apply); Article 168-14 (3) 5 of the former Enforcement Decree of the Income Tax Act (amended by Act No. 8825 of Dec. 31, 200); Article 83-5 (3) 2 of the former Enforcement Decree of the Income Tax Act (amended by Act No. 8314 of Apr. 26, 2007) provides that farmland shall be excluded from its land. .

Article 104-3 (1) 1 (a), (b), and (2) of the former Income Tax Act (Amended by Act No. 8825, Dec. 31, 2007); Article 168-14 (3) 5 of the former Enforcement Decree of the Income Tax Act (Amended by Presidential Decree No. 20720, Feb. 29, 2008); Article 83-5 (3) 2 (see current Article 83-5 (4) 2) of the former Enforcement Rule of the Income Tax Act (Amended by Ordinance of the Ministry of Strategy and Finance No. 15, Apr. 29, 2008); Article 6 (2) 4 (see current Article 6 (2) of the former Farmland Act (Amended by Act No. 8352, Apr. 11, 2007)

Plaintiff

The director of the Southern Incheon District Office

Seoul High Court Decision 2010Nu33667 decided July 26, 201

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 104-3 (1) of the former Income Tax Act (amended by Act No. 8825, Dec. 31, 2007; hereinafter the same shall apply) provides that "land for non-business with heavy capital gains tax shall be "land falling under any of the following subparagraphs during the period prescribed by Presidential Decree during which the relevant land is owned" and subparagraph 1 provides that "land for the whole, paddy, paddy, and orchard (hereinafter referred to as "farmland") which falls under any of the following items". The main sentence of subparagraph (a) provides that "farmland for which the owner does not reside in the location of such farmland under conditions prescribed by Presidential Decree, or which is not cultivated by himself"; (b) subparagraph 3 (excluding Guns located in Metropolitan Cities) and Si areas (excluding Eup/Myeon areas in Eup/Myeon areas under the provisions of Article 3 (4) of the Local Autonomy Act; hereinafter the same shall apply) under Article 20-18 (2) of the former Enforcement Decree of the Income Tax Act shall not be deemed land for non-business business under the conditions prescribed by Presidential Decree No. 20. 9. 20.

Article 8-14 (3) 5 of the former Enforcement Decree of the Income Tax Act and Article 83-5 (3) 2 of the former Enforcement Rule of the Income Tax Act stipulate the scope of land not deemed land for non-business use, and do not exclude the application thereof. Meanwhile, Article 6 (2) of the former Farmland Act (wholly amended by Act No. 8352 of Apr. 11, 2007) stipulates that the farmland not used for his own agricultural management may be exceptionally owned by a person who has carried on agricultural management for a period prescribed by the Presidential Decree, and Article 6 (2) of the former Farmland Act provides that "the person who has carried on agricultural management for a period prescribed by the Presidential Decree shall continue to own the farmland owned at the time of the transfer of the farmland within the scope of the urban area." Article 168-14 (3) 5 of the former Enforcement Decree of the Income Tax Act and Article 83-5 (3) 2 of the former Enforcement Rule of the Income Tax Act provides that farmland within the urban area shall be excluded from the scope of land under Article 258 (36) 10).

The judgment below to the same purport is just, and there is no error in the misapprehension of legal principles as to the scope of land excluded from non-business land as provided in Article 168-14 (3) 5 of the former Enforcement Decree of the Income Tax Act and Article 83-5 (3) 2 of the former Enforcement Rule of the Income Tax Act.

2. Regarding ground of appeal No. 2

The allegation in the grounds of appeal in this part is merely an error of the selection of evidence or fact-finding which belongs to the exclusive jurisdiction of the court below, and thus cannot be a legitimate ground of appeal. Furthermore, even if examining the judgment of the court below in light of the records, there is no violation of the principle of free evaluation of evidence against logical and empirical rules

3. Conclusion

Therefore, the appeal is 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.

Justices Lee In-bok (Presiding Justice)