Cho High Court Decision 2010Du0684 (Law No. 19, 2010)

Comprehensively taking into account the fact that students and workers are students, they cannot be deemed to have cultivated directly for not less than eight years.

Article 66 (1) of the Enforcement Decree of the Restriction of Special Taxation Act, which prescribes "direct cultivation of self-Cultivating farmland" for not less than 8 years, does not violate the principle of statutory reservation and the principle of superiority of law, and it cannot be recognized that the plaintiff had cultivated directly for not less than 8 years in full view of the fact that the plaintiff was performing his studies, and that he was an employee, etc.

Article 66 (1) of the Enforcement Decree of the Restriction of Special Taxation Act

2010Guhap2153 Revocation of Disposition of Demanding Capital Gains Tax Correction

IsaA

○ Head of tax office

April 6, 201

April 20, 2011

1. The plaintiff's claim is dismissed.

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

The defendant's rejection disposition against the plaintiff on September 30, 2009 is revoked.

1. Basic facts

A. On August 27, 1981, the Plaintiff acquired ○○○○○○, ○○○○○, 897 square meters (hereinafter “the farmland of this case”) and transferred 1,476 square meters (hereinafter “the farmland of this case”). On February 4, 2009, on April 30, 2009, the Plaintiff voluntarily paid the transfer income tax on the transfer of the farmland of this case as KRW 145,920,528 (transfer value 246,30,000-acquisition value 37,669,411), and the transfer income tax amount to be voluntarily paid as KRW 32,451,466.

B. After that, on June 27, 2009, the Plaintiff filed a claim for correction against the Defendant to the effect that capital gains tax already paid pursuant to Article 69(1) of the former Restriction of Special Taxation Act (amended by Act No. 10406, Oct. 27, 2010; hereinafter referred to as the “former Restriction of Special Taxation Act”) was reduced by 32,451,466 won and request the refund thereof under the premise that the Plaintiff directly cultivated the instant farmland for at least eight years.

C. On September 30, 2009, the Defendant rendered a disposition to refuse the Plaintiff’s request for light oil (hereinafter “instant disposition”) on the ground that the Plaintiff did not directly cultivate the instant farmland for at least eight (8) years, on the ground that the Plaintiff did not meet the requirements for reduction or exemption under Article 69(1) of the former Restriction of Special Taxation Act.

D. On November 17, 2009, the Plaintiff filed an objection against the instant disposition with the Defendant, but was dismissed on November 27, 2009, and the Plaintiff again filed an administrative appeal against the Investigative Agency on February 23, 2010, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on May 19, 201 that it is difficult for the Plaintiff to deem that the Plaintiff satisfied the requirements for direct cultivation for at least eight years.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 9, 10, 11, 12, 13, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether a disposition is lawful

A. The plaintiff's assertion

1) Since the requirement of "direct farming" among the requirements for reduction and exemption of capital gains tax under Article 69 (1) of the former Restriction of Special Taxation Act is essential to determine reduction and exemption of capital gains tax under the relevant provision, in order to stipulate its meaning or contents in the Enforcement Decree of the Restriction of Special Taxation Act, the delegation of the Restriction of Special Taxation Act should be made by the parent corporation. The former Restriction of Special Taxation Act does not have any delegation provision on the meaning and content of the above "direct farming". Therefore, Article 66 (13) of the Enforcement Decree of the Restriction of Special Taxation Act

2) The Supreme Court, as a matter of principle, has the power to interpret the law, interpreted that the meaning of the "direct cultivation" of the above provision of the Restriction of Special Taxation Act includes cases where a family member lives or lives in the same household with respect to the meaning of "direct cultivation" (see, e.g., Supreme Court Decision 94Nu11859, Feb. 3, 1995). The Enforcement Decree of the Restriction of Special Taxation Act, which is a subordinate law, prescribes the meaning of "direct cultivation" of the above provision of the Restriction of Special Taxation Act, is invalid because it violates the principle

3) A) Although the Plaintiff acquired the instant farmland at Green Age, the Plaintiff directly cultivated the instant farmland with her mother for a period of not less than eight years from the date of fishing.

B) In addition, the farmland in this case was actually entrusted to the Plaintiff as the Plaintiff’s mother’s ownership, and the leB, the actual owner, cultivated directly from the farmland in this case for eight years.

C) Therefore, the Plaintiff constitutes a case where the Plaintiff directly cultivated the farmland of this case for at least eight years.

4) Therefore, the Defendant’s disposition of this case is unlawful in accordance with the criteria under Article 66(13) of the Enforcement Decree of the Restriction of Special Taxation Act that is null and void. Even if not, the Plaintiff’s farmland of this case constitutes a case where the Plaintiff’s direct self-determination was made for not less than eight years, and thus, the transfer income tax should be exempted. The Defendant should make a disposition to rectify the transfer income tax against

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on the assertion of violation of the principle of statutory reservation

The Enforcement Decree of the Act cannot change or supplement the contents of rights and obligations of an individual, or determine new contents that are not prescribed by the Act, unless otherwise prescribed by the Act. However, the Enforcement Decree of the Act is merely a specification that is possible in the interpretation of the parent law by systematically and systematically examining the legislative intent of the parent law and the entire relevant provisions, or when it is intended to specify them based on the purport of the provisions of the mother law, it shall not be deemed beyond the scope of the parent law’s regulation. Therefore, even if there is no provision directly delegating the parent law, it shall not be deemed null and void (see Supreme Court Decision 2008Du13637, Jun. 11, 2009).

Article 66 (1) of the Enforcement Decree of the Restriction of Special Taxation Act (hereinafter referred to as the "Enforcement Decree of the Restriction of Special Taxation Act") provides that the meaning of "direct cultivation" under Article 69 (1) of the Enforcement Decree of the Restriction of Special Taxation Act shall be the same content as that of the self-regulation under Article 2 (5) of the Farmland Act, in light of the purpose of legislation of Article 69 (1) of the same Act, and in view of the contents of Article 2 (5) of the Farmland Act (referring to the case where a farmer who does not own land is engaged in cultivating crops or growing perennial plants on his own land or growing or growing crops with his own labor at least half of farming work, and where an agricultural corporate body cultivates crops or growing perennial plants on its own land), it shall not be deemed that it does not deviate from the scope of the regulation of the mother law, and therefore, it shall not be deemed that the provision of the Enforcement Decree of the same case is invalid because it does not have any ground for delegation or goes beyond the limit of delegated legislation. Therefore, the plaintiff's assertion

The principle of direct cultivation under Article 69(1) of the former Restriction of Special Taxation Act is merely a provision that provides the same content as the self-defense provision under Article 2(5) of the Farmland Act, and thus, it cannot be deemed that the Enforcement Decree is more strict requirements than the "direct cultivation" under the law, on the ground that the government's administration should not be in violation of the law enacted in accordance with the constitutional procedure. However, the Enforcement Decree cannot be deemed as null and void on the ground that it provided the enforcement decree differently from the interpretation of the court.

Therefore, the plaintiff's assertion on this part is without merit.

3) Determination as to whether the Plaintiff constitutes a direct farming requirement for at least eight years

A) Facts of recognition

(1) The Plaintiff’s resident registration record of address

(2) The plaintiff's history

(3) Current status of farmland owned by the plaintiff

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 8, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

B)Judgment

From August 27, 1981 to October 10, 1996, the fact that the Plaintiff acquired the farmland of this case had a domicile on the resident registration in Ri 969-2 near the farmland of this case before moving his domicile to △△△△△, as seen above. However, the following circumstances acknowledged by the above facts are as follows: the Plaintiff performed his studies during about seven years during the above period; in particular, a junior college that is not the Plaintiff is located in △△△, and the Plaintiff worked in △△△△, located in △△, located in △△△, and the total area of the farmland of this case; the total area of the farmland owned by the Plaintiff is a total of 4,982 square meters except for the land categorized as a road, and is a size wide size; it is difficult to find that the Plaintiff constantly engaged in growing crops or growing plants in the farmland of this case for a period of not less than 8 years, or does not have any other reason to believe that the Plaintiff did not have any capacity to cultivate or cultivate more than 1/7 percent of labor.

4) The Plaintiff’s mother leB’s written evidence Nos. 1 and 12 and the facts acknowledged therefrom are merely based on the determination as to whether the Plaintiff’s mother leB constitutes a direct cultivation requirement for not less than eight years, and the instant farmland was actually registered in title with the Plaintiff as the Plaintiff’s mother’s ownership. It is difficult to recognize that leB resided in the instant farmland and was engaged in the cultivation of crops or perennial plants for not less than eight years, or cultivated or cultivated with 1/2 or more of the instant farmland with her own labor, and there is no other evidence to acknowledge otherwise. Accordingly, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.