Whether the aggregate ceiling of capital gains tax reduction or exemption is applied to the land transferred by the Land Expropriation Act

December 30, 1995 under the Land Expropriation Act, the aggregate ceiling of reduction and exemption of capital gains tax on the transferred land shall be applied to the amended Act, and the ceiling shall be 100 million won.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.

1. Details of the disposition;

The following facts may be acknowledged if there is no dispute between the parties, or if Gap's statements in Gap's 1 and 2, Eul's 1, 3, Eul's 2-1, 2, Eul's 4-1, 4-4, respectively, are collected from the whole purport of the pleading:

"가. 원고는 1986. 12. 27. ㅇㅇ ㅇ구 ㅇㅇ동 ㅇㅇ 답 1,613㎡(이하이 사건 토지'라 한다)를 매수, 취득하여 보유하고 있던 중 그 토지가 1993. 6. 16.자로 택지개발촉진법 제8조의 규정에 따라 건설교통부장관의 택지개발계획승인신고시(제210호)에 의하여 ㅇㅇ ㅇㅇ 제2지구 택지개발지구용지조성사업에 편입되게 됨으로써 같은 날 토지수용법 제14조의 규정에 의한 사업인정의 고시가 있은 것으로 되었다.",나. 원고는 위 사업시행자로서 기업자인 ㅇㅇ광역시로부터 토지수용법이 정하는 바에 따라 협의매수요청을 받아 1995. 12. 30. ㅇㅇ광역시와 사이에 이 사건 토지의 매매대금을 금 390,346,000원으로 하는 매매계약을 체결함과 동시에 같은 날 이 사건 토지에 관하여 ㅇㅇ광역시 앞으로 소유권이전등기를 경료해 주었으며, 1996. 1. 5. 그 매매대금으로 현금 156,346,000원과 금 234,000,000원의 채권을 지급받았다.

C. On February 26, 1996, the Plaintiff calculated capital gains tax amounting to 302,040,891 won (transfer value 332,278,000 won - acquisition value 29,762,887 won - necessary expense amounting to 474,222 won) calculated on the basis of the standard market price, 263,491,338 won, subtracting special deduction for long-term holding for 5 years or longer from the special deduction amount for capital gains tax, and 135,420,335 won by multiplying the tax rate by 55%. After calculating the calculated tax rate, 135,420,335 won, which was in force at that time after deducting the reduced or exempted tax amount under Article 119 of the Regulation of Tax Reduction and Exemption Act as 10,000,000 won, 300,000 won for special rural development tax and rural development tax, 200,30138 won.

D. However, since the Plaintiff’s expropriation of the instant land on June 16, 1993 is the project approval date of June 16, 1993, the Plaintiff’s total amount of reduction or exemption of capital gains tax to be reduced or exempted pursuant to Article 88-2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4451 of February 27, 1991) which was enforced at that time is 300,000,000, and the total amount of reduction or exemption of capital gains tax to be received pursuant to Article 88-2 of the said Act is 156,346,000 and 234,000,000 won received by the Plaintiff as the transfer price of the instant land, 30,000,000 won, 117,233,379,0000 won should be deducted or exempted from capital gains tax, and thus, the Plaintiff’s total amount of reduction or exemption of capital gains tax should be deducted from 160,300.

A. The parties' assertion

As to the plaintiff's assertion that the disposition of this case is lawful on the grounds of the above disposition and applicable provisions of law, the plaintiff (1) is related to the expropriation of the land of this case as of June 16, 1993, and is subject to the provisions of Article 88-2 of the former Tax Reduction and Exemption Control Act, which was enforced on the date of the public notice of the approval of the project. In this case, the limit of the reduced or exempted amount of capital gains tax is about 300 million won by taxable period, and the disposition of this case which refused the plaintiff's request for correction is unlawful. (2) The plaintiff's request for special rural development tax of this case is not so long as 8 years or more from the date of acquisition of the land of this case, and since the land of this case satisfies all the requirements of non-taxation for special rural development tax of this case for more than 8 years and its income subject to non-taxation for transfer income tax reduction and exemption, the plaintiff's disposition of this case is deemed to be unlawful under Article 37 (1) of the Addenda of the Act.

B. First, determination on the assertion that the ceiling of the capital gains tax amount reduced or exempted under the Regulation of Tax Reduction and Exemption Act is 300 million won (1) related Acts

The provisions of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 466, Dec. 31, 1993; Act No. 4743, Mar. 24, 1994; hereinafter referred to as the “Act”) related to this case shall be as follows; and as regards the income accruing from the transfer of land or buildings falling under any of the following subparagraphs (hereinafter referred to as “land, etc.”) falling under Article 63(1), the tax amount equivalent to 30/100 of the transfer income tax or special surtax (45/100 for the land, etc. which are paid with bonds as prescribed by the Presidential Decree) corresponding to 10/100 of the transfer income tax or special surtax shall not be reduced or exempted for 40/100 of the transfer income tax on the land, etc. for which the land, etc. belongs, which are acquired before the date of approval for the business (the date of transfer of the project approval) or 50/100 of the transfer income tax on the land, etc.

Article 1 of the Addenda: This Act shall enter into force on January 1, 1994.

The main sentence of Article 7 (1) of the Addenda: The amended provisions on capital gains tax or special surtax of this Act shall apply from the first transfer after this Act enters into force.

Article 16 (3) of the Addenda : Notwithstanding the provisions of Articles 63 and 78, any reduction or exemption of transfer income tax and additional collection on any income accruing from a transfer of the lands, etc. located within the project area for which a public announcement of project approval has been made under the Land Expropriation Act or other Acts,

Subparagraph 1: Where land, etc. located within a project area publicly announced before December 31, 1992 is transferred, capital gains tax or special surtax shall be exempted.

In case where the land, etc. located within the project area for which a public announcement of project approval has been made before December 31, 1993, except for the cases falling under subparagraph 1, is transferred on or before December 31, 1993

In full view of the purport of the above provision, Article 63(1) of the Act and Article 16(3) of the Addenda of the Act provide for the reduction or exemption of transfer income tax on income accruing from the transfer of land, etc. due to the Land Expropriation Act, and Article 16(3) of the Addenda of the Act provides for the application of the reduction or exemption of transfer income tax in cases falling under certain conditions among cases of reduction or exemption pursuant to Article 63(1) of the Act, so fundamentalally, the reduction or exemption under Article 63(1) of the Act provides for the reduction or exemption of transfer income tax due to land expropriation, etc., and Article 119 of the Act provides for the total limit of reduction or exemption of transfer income tax, and Article 16(3) of the Addenda of the Act provides for the reduction or exemption of transfer income tax on income accruing from transfer of land under the Land Expropriation Act, etc. as well as the case of exemption under Article 16(3) of the Addenda of the Act including the case of reduction or exemption under Article 16(3).

(2) 살피건대, 앞서 본 바와 같이 이 사건 토지에 관한 사업인정고시일은 1993. 6. 16.이고, 그 양도일은 이 사건 토지에 관하여 ㅇㅇ광역시 명의의 소유권이전등기가 경료된 때인 1995. 12. 30.이므로 {구 소득세법(1994. 12. 22. 법률 제4803호로 전문개정되기 전의 것) 제27조는, 자산의 양도차익을 계산함에 있어서 그 취득시기 및 양도시기에 관하여는 대통령령으로 정한다고 규정하고, 구 소득세법시행령(1994. 12. 31. 대통령령 제14467호로 전문개정되기 전의 것) 제53조 제1항은, 법 제27조에 규정하는 취득시기 및 양도시기는 다음 각호의 경우를 제외하고는 당해 자산의 대금을 청산한 날로 한다고 규정하면서 그 제2호에서, 대금을 청산하기 전에 소유권이전등기(등록 및 명의의 개서를 포함한다)를 한 경우에는 등기부등록부 또는 명부 등에 기재된 등기접수일을 규정하고 있다}, 이 사건 토지의 양도로 인한 양도소득세는 법 부칙 제16조 제3항 제2호에 의하여 종전의 법 제57조의 규정에 의하여 면제되어야 할 것이나, 그 면제한도에 관한 법 제119조는 1993. 12. 31. 법률 제4666호에 규정된 조항으로서, 그 법률부칙에 적용시기는 1994. 1. 1. 이후 양도분부터라고 규정되어 있으므로, 그 면제한도는 법 제119조에 따라 금 1억 원이라고 할 것이므로, 이와 다른 전제에 선 원고의 이 부분 주장은 이유 없다 할 것이다.

C. Next, Article 5 subparagraph 6 (d) of the former Income Tax Act (amended by Presidential Decree No. 13802, Dec. 31, 1992; hereinafter the same) which applied at the time of transfer of the land of this case for eight or more years, provides that the income accrued from the transfer of the land prescribed by Presidential Decree, among the land which is subject to taxation of farmland tax (including the case of non-taxation reduction or exemption and small collection), which was cultivated by himself for eight or more years, shall be subject to non-taxation, and Article 14 (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13802, Dec. 31, 1992; hereinafter the same shall apply) provides that the farmland of this case is used for the cultivation of the land of this case as of the date of transfer of the land of this case, which was cultivated by himself, regardless of its actual category, as the rice paddy and paddy field. However, the plaintiff's assertion in this part of this case is without any reason to acknowledge any further.

D. Finally, Article 3 subparag. 1 of the Act on Special Rural Development Tax, which was promulgated by Act No. 4743 on March 24, 1994 and enforced on July 1, 1994, provides that a person who falls under any of the following subparagraphs shall be liable to pay the special rural development tax. Article 4 of the Act on Special Rural Development Tax provides that a person who has been exempted from the income tax under the Regulation of Tax Reduction and Exemption Act shall not be subject to the special rural development tax in any of the following cases; Article 4 of the Act on Special Rural Development Tax provides that special rural development tax shall not be subject to subparagraph 1 and 12; subparagraph 12 of the Act, technology and human resources development, property formation, public works, etc.; Article 4 subparag. 1 through 5 of the Enforcement Decree of the same Act provides that special rural development tax should be exempted for the efficient operation of the national economy; Article 6 subparag. 1 through 4 subparag. 7, 1994; Article 6 subparag. 1 through 5 of the Enforcement Decree of the same Act. 4.

(2) However, as seen in the above facts, the Plaintiff was exempted from capital gains tax under Article 16(3) of the Addenda of the Regulation of Tax Reduction and Exemption Act, which was completely revised on December 31, 1993, and Article 57 of the said Act prior to the said amendment. Article 57 of the said Act provides that capital gains tax on the income accrued from the expropriation of land under the Land Expropriation Act shall be reduced or exempted. As above, Article 16(3)2 of the Addenda of the Regulation of Tax Reduction and Exemption Act, which was completely revised, provided that Article 57 of the said Act shall apply to the transfer of land, etc. located within a business area publicly announced before December 31, 193.

On the other hand, Article 57 of the Regulation of Tax Reduction and Exemption Act, which was completely revised on December 31, 1993, and Article 57 of the Land Expropriation Act provides that capital gains tax on the income accrued from the expropriation of land under the Land Expropriation Act shall be reduced or exempted, but the reduction or exemption has

(3) In addition, Article 4(7) of the Enforcement Decree of the Special Rural Development Tax Act provides that the corresponding provisions of the Tax Reduction and Exemption Control Act (Act No. 4666) which provide for the same purport as those of the Act on the Regulation of Tax Reduction and Exemption which are subject to special rural development tax under the Act on Special Rural Development Tax or its Enforcement Decree shall not impose special rural development tax even on the transitional measures or special cases where the transitional measures or special cases under Articles 13 through 19

(4) In full view of the above provisions, in principle, the Act on the Regulation of Special Rural Development Tax does not impose special rural development tax on those who have been exempted from special rural development tax under the Act on the Regulation of Special Rural Development Tax while imposing the obligation to pay special rural development tax on those who have been exempted from special rural development tax under the Act on the Regulation of Special Rural Development Tax, and as such, Article 4 of the Act on the Regulation of Special Rural Development Tax and Article 4 (6) of the Enforcement Decree of the Act on the Regulation of Special Rural Development Tax and Article 4 (6) of the Act on the Regulation of Special Rural Development Tax are provided in cases where those who have been exempted from special rural development tax are exempted from special rural development tax, and in cases where those taxes have been exempted from special rural development tax under the Act on the Regulation of Special Rural Development Tax and the Act on the Regulation of Tax Reduction and Exemption, the Act on the Regulation of Special Rural Development Tax and the Act on the Regulation of Special Rural Development Tax are referred to as the same provision to the effect that special rural

(5) Therefore, Article 4 (7) of the Enforcement Decree of the Special Rural Development Tax Act provides that special rural development tax shall not be imposed in the case where Article 13 through 19 of the Addenda to the Regulation of Tax Reduction and Exemption Act (wholly amended by Act No. 4666 of Dec. 31, 1993) applies, but the special rural development tax shall not be imposed in the case where Article 13 through 19 of the Addenda to the Act on the Regulation of Tax Reduction and Exemption (wholly amended by Act No. 4666 of Dec. 31, 1993). However, Article 4 (7) of the Enforcement Decree provides that special rural development tax shall not be imposed in the case where all transitional measures or special exceptions as provided in Articles 13 through 19 of the Addenda to the Act on the Regulation of Tax Reduction and Exemption do not impose a special rural development tax for the same purport

(6) However, as seen above, Article 4 of the Act on Special Rural Development and its Enforcement Decree Article 4 (6) of the Act on Special Rural Development and Article 4 (6) of the Act does not stipulate the exempted transfer income tax on the income accruing from the expropriation of land under the Land Expropriation Act as non-taxation. In addition to Article 4 of the Act or Article 4 (6) of the Enforcement Decree of the Act, in case of the expropriation of land under the Act on Special Rural Development and its Enforcement Decree, Article 57 of the Regulation of Tax Reduction and Exemption which provides for the reduction and exemption of transfer income tax on the expropriation of land under the Land Expropriation Act and its Enforcement Decree does not stipulate the same as that of the special rural development tax under the Act on Special Rural Development and its Enforcement Decree, and therefore, it does not constitute non-taxation of special rural development tax

(7) 따라서 원고가 토지수용법에 의하여 이 사건 토지를 ㅇㅇ광역시에 양도하고, 그 양도소득에 대하여 1993. 12. 31. 전면개정된 조세감면규제법 부칙 제16조 제3항과 위 개정전의 같은 법 제57조에 의하여 감면받은 양도소득세는 농어촌특별세 비과세대상에 해당하지 않으므로, 그 면제받은 양도소득세를 과세표준으로 하여 원고에 대하여 농어촌특별세를 부과한 것은 적법하다 할 것이어서, 원고의 이 부분 주장 또한 이유 없다 할 것이다.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking revocation on the premise that the disposition of this case is unlawful is dismissed as it is without merit, and the costs of lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.

July 30, 1997