Whether the land of this case is subject to reduction or exemption of capital gains tax for eight years;

Since the land of this case does not meet the cultivation requirements, it does not constitute reduction or exemption of capital gains tax (it cannot be deemed that the plaintiff cultivated the land of this case).

Article 69 of the Restriction of Special Taxation Act

Daejeon District Court (Cheongju) 2016Nu10962

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ㅁㅁ세무서장

National Rotations

2017.27

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The transfer income tax reverted to the Plaintiff on March 5, 2015 by the Defendant to the Plaintiff

14,426,410 won and 42,930,320 won (including additional taxes) of capital gains tax belonging to 2014 shall be imposed.

(w).

1. Details of the disposition;

The reasoning for the court’s explanation on this part is as stated in the corresponding part of the judgment of the first instance except for the addition of the following to the third page 17 of the judgment of the first instance. Thus, it is acceptable as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act. The Plaintiff filed an application for adjudication on the unconstitutionality of Article 69(1) of the former Restriction of Special Taxation Act (amended by Presidential Decree No. 2016 A. 5021) with respect to Article 69(1) of the former Restriction of Special Taxation Act (amended by Presidential Decree No. 20135, Nov. 24, 2016) and the court of the first instance (amended by Presidential Decree No. 20135, Nov. 24, 2016) on the ground that “resident residing in the location of farmland subject to reduction or exemption of capital gains tax pursuant to Presidential Decree” can be predicted that the aforementioned part may be determined within the scope of a person based on life in a small distance.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Claim on the application of capital gains tax reduction and exemption regulations

Article 69 (1) of the former Restriction of Special Taxation Act stipulates "resident living in the area of farmland" and "self-arable land" as a requirement for reduction or exemption of capital gains tax for self-Cultivating farmland, and Article 66 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070, Feb. 3, 2015; hereinafter the same) stipulates the specific scope of "resident living in the area of farmland" according to delegation of the above Article 66 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 26070, Feb. 3, 2015; hereinafter the same shall apply) as "person living in the area of Si/Gun/Gu where farmland is located and in the

The owner of farmland residing in an administrative district identical or adjacent to the farmland location shall be exempted from capital gains tax pursuant to Article 66(1)1 and 2 of the Enforcement Decree of the Restriction of Special Taxation Act even if his/her residence is located in an area exceeding 20 km in straight line from the farmland. On the other hand, a person who does not do so shall be exempted from capital gains tax pursuant to Article 66(1)3 of the Enforcement Decree of the Restriction of Special Taxation Act only when he/she is located in an area within 20 km in straight line from the farmland. The Enforcement Decree of this case, which excessively narrows the scope of reduction and exemption, violates the right to equality and property rights of the owner of farmland identical to the Plaintiff by arbitrarily discriminating the taxpayer on the basis of administrative districts, which are irrelevant to the self-defluence. Therefore, the Enforcement Decree of this case is unconstitutional and void in violation of the Constitution. Thus, regardless of whether the owner of farmland resides in

However, since the Plaintiff developed each of the instant lands from 1995 to 2009, the transfer of each of the instant lands constitutes a subject of reduction of tax amount equivalent to 100/100 of capital gains tax as prescribed by the former Restriction of Special Taxation Act, but the Defendant excluded the Plaintiff from applying for full reduction of capital gains tax and imposed capital gains tax. Accordingly, the instant disposition is unlawful.

(ii) argument on the application of special deduction held for a long term;

Even if the Plaintiff’s self-sufficiency period falls short of eight years and does not constitute reduction and exemption of capital gains tax, the Plaintiff’s respective land of this case, which is the farmland owned for business for not less than five years, was self-contributed during the period prescribed by the income tax law, and thus, the Defendant excluded the special deduction for long-term possession and calculated capital gains. Therefore, the part of the disposition of this case which

B. Relevant statutes

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part of the court's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

C. Determination as to whether the enforcement decree of the instant case is unconstitutional

1) Relevant legal principles

The imposition and collection of taxes shall be carried out fairly and equally in accordance with the taxpayer’s ability to pay taxes. The imposition and collection of taxes shall not, in principle, be allowed to provide unfavorable or preferential treatment to a specific taxpayer without any justifiable reason, regardless of the requirements for taxation, non-taxation, or tax reduction and exemption, in principle. However, in cases where the legislators enact preferential provisions that grant tax reduction and exemption benefits to the established tax in order to achieve policy objectives, rather than imposing taxes or increasing tax burdens, determination of the scope may not be readily concluded as unconstitutional unless it belongs to the broad discretion of the legislators and cannot be deemed to clearly deviate from the discretionary scope. In addition, even if the collection of taxes in relation to the relationship between taxes and property rights is based on the citizen’s tax liability and does not infringe upon the property right in principle, the imposition and collection of taxes may result in infringement of property rights if the right to use, profit, or disposal is subject to serious restrictions. However, it does not result in infringement of property rights only on the ground that they were excluded from the date of beneficial legislation, but it does not include property rights expected to be simply protected by the Constitutional Court Decision 20130.

2) Legislative purpose and amendment process under the Enforcement Decree of the instant case

A) Article 69 of the former Restriction of Special Taxation Act provides for policy preference to the transfer of farmland for which tax liability has been established under the Income Tax Act as part of the land farming policy to reduce the tax burden. In particular, Article 69 of the former Restriction of Special Taxation Act provides for the benefit of reduction and exemption for the purpose of facilitating agriculture and rural communities by preventing the speculation of farmland by external residents and reducing the tax burden of a self-employed farmer who has engaged in long-term agriculture, thereby preventing the reduction of rural population.

B) According to the purport delegated by the above legal provision to ensure that a person who has a basis for living at a small distance which can be seen as being self-fluence in the farmland in question may be able to determine reduction and exemption in accordance with the change of the land farming policy, the instant Enforcement Decree provision stipulates that a person who resides in an area within 20 km in a straight line from the farmland to the extent of "a person who

C) However, the same content as the deletion of the previous Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 14869, Dec. 30, 1995) was amended by Presidential Decree No. 20620, Feb. 22, 2008; the Enforcement Decree of the Restriction of Tax Reduction and Exemption Act was amended by Presidential Decree No. 20620, Feb. 3, 2015; and the said Enforcement Decree was amended by Presidential Decree No. 26070, Feb. 3, 2015, the reduced or exempted farmland was somewhat expanded from farmland to a resident in an area within 30km in straight line from

D) In addition to Article 66(1)1 and 2 of the former Enforcement Decree of the Restriction of Special Taxation Act stipulating the specific scope of residents in the farmland as the basis of administrative district, the provision of the Enforcement Decree of this case, which provides for the distance from the farmland, is to supplement the taxation-oriented problem arising from the self-employed farmer who resides near the farmland and prevents him from receiving the benefits of reduction or exemption due to the difference in the administrative district. The reason why the reduction or exemption has been expanded from the residents within 20km to the local residents within 30km from the local residents to the local residents within 20km, is to reflect the change in the way to which the possible distance has

3) Whether equality and property rights are infringed

A) Determination of the scope of ‘resident at the seat of farmland' that is subject to tax reduction or exemption in order to achieve the policy objectives of agricultural and rural communities belongs to the broad legislative formation authority of the legislators. As such, preferential treatment measures for tax reduction or exemption is contrary to the principle of tax equality and is also the waiver of financial resources of the State or local governments, and it is inappropriate to reduce the scope as much as possible, and thus, it is not desirable to expand the scope thereof. In particular, if it is necessary to achieve the objective of tax reduction or exemption, the requirement of the person benefiting from the reduction or exemption should be strict and exceptionally permitted within the extremely limited scope (see, e.g., Constitutional Court Order 2009Hun-Ba171, Dec. 28, 2010). ② According to the legislative purpose of the mother law of this case, it is difficult to first consider the achievement of the policy objective of ‘resident at the seat of farmland' which is subject to tax reduction or exemption in order to secure the scope of ‘resident at the seat of the relevant rural area where the farmland is located.

B) In addition, the instant Enforcement Decree provisions only stipulate the requirements for granting the benefits of reduction or exemption for policy purposes on the premise that a capital gains tax liability is established under the Income Tax Act. In other words, the provisions that stipulate the beneficial requirements that grant the benefits to the people, and do not limit the fundamental rights of the people. Therefore, according to the relevant legal principles as seen earlier, the Plaintiff’s assertion that the Enforcement Decree provision of this case, which sets the specific scope of “farmland residence” among the requirements for reduction or exemption of capital gains tax, is in violation of the Constitution, and thus, is invalid.

D. Determination as to whether capital gains tax reduction and exemption and special deduction for long-term possession meet the requirements

1) Article 69(1) of the former Restriction of Special Taxation Act and Article 66(1) of the former Enforcement Decree of the Restriction of Special Taxation Act stipulate that a farmland owner shall live in an area where the farmland is located, i.e., "resident in an administrative district equal to or adjacent to the farmland or within 20km in a straight line from the farmland, for at least eight years. Likewise, as part of the land farming policy, Article 95(1) and (2), and Article 104-3(1)1(a) of the former Income Tax Act (wholly amended by Act No. 12852, Dec. 23, 2014; hereinafter the same shall apply), which is a policy preferential provision for reducing the tax burden of a self-employed farmer, stipulate that the farmland owner shall reside in an area where the farmland is located, i.e., e., "resident residing in an area where the farmland is located for at least 3 years immediately before the date of transfer, or shall also be at least 20 years or 5 years or more as the owner of the farmland held for business.

2) However, the burden of proof for applying the requirements for reduction of and exemption from such policy objectives is against a taxpayer claiming the application of the said requirements (see, e.g., Supreme Court Decisions 92Nu11893, Jul. 13, 1993; 2002Du7074, Nov. 22, 2002). There is no evidence to prove that the Plaintiff has resided in an administrative district equal or adjacent to the location of each land of this case for at least eight years or within a period prescribed by the above former Income Tax Act, or in an area within 20 km in a straight line from each land of this case. Rather, according to each description of Gap's 2, 5, Eul 5, Eul 6 (including a serial number; hereinafter the same shall apply), since the Plaintiff's residence (including an administrative district prior to consolidation), it is difficult to recognize that the land of this case was lawfully reduced or exempted from the transfer income tax of this case and the land of this case for which it was located within the boundary of 174m and 25m of each administrative district of this case.

However, the plaintiff argued in particular as the main issue in the trial whether the requirements for self-defense are met or not, and even if examining the claims on the above requirements, it is not acceptable as seen in the following sub-paragraph (e).

E. Additional determination on the Plaintiff’s assertion to satisfy the Plaintiff’s self-defense requirement

1) Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act, which embodys the meaning of "direct farming" which is the requirement of reduction or exemption of capital gains tax pursuant to delegation of Article 69(1) of the former Restriction of Special Taxation Act, and Article 168-8(2) of the former Enforcement Decree of the Income Tax Act, which embodys the meaning of "self-arable" which is the requirement of business farmland subject to special deduction of long-term holding by delegation of Article 104-3(1)1(a) of the former Income Tax Act, and Article 2 subparag. 5 of the Farmland Act, provides that the owner of farmland cultivates or cultivates the above direct farming or self-arable by using "self-Cultivating for the cultivation of crops or the growing of perennial plants in his own farmland" or her own labor force.

Here, the meaning of "self-working force" cannot be deemed to include the case in which another person is employed under his/her responsibility and account, and its meaning shall be interpreted in accordance with the literal interpretation (see Supreme Court Decisions 2010Du8423, Sept. 30, 2010; 2012Du19700, Dec. 27, 2012).

(See) not always engaged in the cultivation of the farmland in question, but directly dominated only sporadicly.

A small person shall take charge of at least 1/2 of the total farming works by himself/herself, but shall meet the above requirements.

It would be sufficient to satisfy.

2) In light of the above legal principles, the entries in Gap evidence Nos. 23, Eul evidence Nos. 23, Eul evidence Nos. 2, 4, and 5 are changed.

In full view of the following circumstances known by the purport of the entire theory, the Plaintiff 8 years thereafter

A person who is regularly engaged in the cultivation of each land of this case for a period prescribed by the Commercial and Income Tax Act.

A, No. 14, 22, 30, 31, which seems to have been in charge of taking one half of farming operations

Part of the evidence, some written testimony of the witness Aa of the court below, and the result of the examination of the plaintiff himself/herself of the party

entrys in Gap evidence 4, 7, 8, 10, 12, 13, 18 through 21, 24, 29, and

The video is not sufficient to recognize this by itself, and there is no other evidence to acknowledge this.

c) it is difficult to deem that the capital gains tax reduction or exemption and the special deduction for long-term possession have satisfied the requirements;

(c)

A) Each description of Gap evidence Nos. 14, 22, 30, and 31, and a witness of the original trial; and

The purport that the Plaintiff was able to take part in the farming work on each land of this case among the result of the Plaintiff’s newspaper.

financial transactions, etc. concerning the purchase of materials to support such activities and the sale of crops;

In addition, there is no objective data, and there is no neighboring residents of each land of this case at the time of the defendant's inquiry.

The plaintiff's statements and the following sub-paragraph (d) are inconsistent with the contents of the plaintiff's own statement and are difficult to believe it as they are.

(c)

B) According to Gap evidence No. 4, the plaintiff 424 from June 5, 1995 to the farmland ledger.

Although land, 432 land, and 437 land are recognized as being self-fluored, the farmland ledger is recognized as being self-fluored.

agency is not required to provide data inside the administration prepared and kept for the efficient implementation of farmland management and agricultural policies.

In addition, there are many cases of preparation without substantial examination, and it is done on each land above the plaintiff.

It is difficult to view this fact as evidence sufficient to recognize the fact.

C) According to the respective descriptions and images of Gap evidence 7, 8, 10, 12, 13, 18, 20, and 29: 1

The fact that the Plaintiff succeeded to the status of member of the Cheongju Agricultural Cooperative in Chogz on August 17, 1995;

② On January 29, 2001, the Plaintiff newly constructed an agricultural material warehouse on the land c. c. 427 of the petitioner-gun internal waters c. 427:

Direct payments compensating for rice income, etc. from around 2005 to 2008 for the farmland above land.

(1) Around December 5, 2008, the petitioner-owned Seoul Special Metropolitan City (hereinafter referred to as the "Seoul Special Metropolitan City") 57 and 57-1.

(3) Details of transactions prepared by the business store located north of the petition group;

A farmer from May 19, 2001 to August 14, 2001 and from May 25, 2006 to October 20, 207

may be found to have been stated as purchasing at home, but this may be found to have been

Matters concerning facts that other farmland owned by the plaintiff was cultivated by the plaintiff located in Sari and Sari-si d, Sari-ri.

Since it is merely a ground for this, the Plaintiff’s land of this case located in Monosan-gun

It can not be presumed that fact is presumed.

D) Rather, ① Discussions on the advisor (Evidence A No. 23) of the Plaintiff’s response made on July 1, 1999.

Most of dry field shall be leased to other agricultural departments, and the north-west of the petitioner-gun (the name of the administrative district is the internal Eup) shall be leased to other agricultural departments.

2. The plaintiff's assistance to the national tax investigator on October 31, 2014

d and Aa in the letter of answer signed in the course of the company (Evidence 2) after 1998

로 원고가 땅을 대고 일부 품삯과 자재비를 대어 이 사건 각 토지에서 인삼 '병작'을

In addition, it could be combined with the agricultural work of c. c. Eup in the case of the petitioner-gun by mobilization of the human parts.

Since 2005, each of the lands of this case was leased to scrap metal, etc. and the height of the scrap mash, etc.

The fact that the plaintiff did not participate in the cultivation except for the cultivation is stated, ③ the plaintiff August 2015.

3. To instruct by telephone the residents who believe that he/she has prepared a written request for a tax trial (Evidence 4).

In each land of this case, the farming company has continued to participate in the farming company at all on the ground that it is not so.

An entry that does not have a field, and that "it may be allowed to stop a farmer for a long time without having a field."

In light of the fact that there is an agricultural work necessary for the cultivation of each land of this case, the plaintiff

It seems that most of them do not take hand and depend on the labor force of neighboring residents.

With respect to the above questions and answers, the plaintiff understand that the national tax investigator erreds in the meaning of 's 's writing'.

(1) prepare a statement in violation of the truth with the statement from the plaintiff, and the signature shall be made disadvantageous to the plaintiff.

Although it is alleged that it was necessary, the focus on questions and answers relating to ‘salary work' is focused upon examining the overall contents of the survey.

A, etc. is not the prior meaning of the above terms, but from the agricultural work called so-called so-called so-called "catus"

의 역할 분담이 구체적으로 어떻게 이루어진 것인가였는데, 품삯과 자재비를 대고 윤

To the extent that the plaintiff is also recognized in the trial process as to the facts of assistance, etc.

The contents of the above written answer cannot be deemed to distort the plaintiff's truth, and savings national tax investigation

for any particular reason that would give disadvantages to the Plaintiff in taxation by inducing the Plaintiff to give unfavorable statements, or

In addition, national tax investigators are also about the requirements of residence in the seat of farmland.

In response, the plaintiff has already been subject to reduction or exemption by objective data related to the above requirements.

It was confirmed that the investigator was excluded, and even when the investigator forced the signature, the prosecution from the plaintiff was made by the plaintiff.

in light of the need to secure virtual taxation data and the fact that there is no need to do so.

- If the plaintiff asserts that the above written answer is written or forced to be written differently from the statement of the above written answer

It is difficult to see that it was sexual.

3. Conclusion

If so, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall be concluded.

Since the plaintiff's appeal is legitimate as Dong, it is dismissed. It is so decided as per Disposition.