Whether capital gains tax reduction ceiling 100 million won provisions constitute retroactive legislation

Since the capital gains tax reduction limit due to the transfer of self-owned farmland for more than 8 years is 100 million won by five taxable periods, one hundred million won shall be reduced by applying the above provision, and a disposition imposing only the excess amount shall not be erroneous and contrary to the principle of prohibition of retroactive legislation.

Article 69 of the Restriction of Special Taxation Act for Self-Cultivating Farmland

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 80,546,790 for the Plaintiff on November 1, 2006 shall be revoked.

1. Details of the disposition;

A. The Plaintiff acquired the instant farmland on March 16, 198 on ○○○○○-dong ○○○○○○○-dong ○○○○○○○○○○, 1,728 square meters (hereinafter “the instant farmland”), and thereafter, changed the farmland for at least eight years. B. The instant farmland was expropriated in ○○○○○○○ on February 27, 2006 for the instant farmland development project, and the Plaintiff applied for reduction or exemption of capital gains tax to the total amount of KRW 180,546,790 pursuant to Article 69 of the Restriction of Special Taxation Act, while filing a preliminary return of capital gains tax following the transfer of the instant farmland on April 21, 206.

C. As to this, the Defendant excluded the Plaintiff from reduction or exemption of capital gains tax for 80,546,790 won exceeding 100 million won on the ground that the limit of reduction or exemption of capital gains tax due to the transfer of farmland for not less than eight years pursuant to Article 133 of the Restriction of Special Taxation Act was 10 million won. On November 1, 2006, the Defendant issued the instant disposition imposing capital gains tax of 80,546,790 won on the Plaintiff.

[Ground of recognition] Facts without dispute, purport of whole pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On March 16, 1996, before the farmland of this case was expropriated to ○○○, the farmland of this case was already 100% reduced or exempted pursuant to Article 69 of the former Restriction of Special Taxation Act (amended by Act No. 5214 of Dec. 30, 1996), and the disposition of this case applied Article 139 of the Restriction of Special Taxation Act (amended by Act No. 5214 of Dec. 30, 2006), which was enforced after January 1, 2006, was contrary to the principle of non-payment of law or the principle of prohibition of retroactive legislation, so the disposition of this case is unlawful and must be revoked.

(b) Related statutes;

/ former Restriction of Special Taxation Act (amended by Act No. 8146 of Dec. 30, 2006)

○ Article 69 Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland

(1) With respect to the income accruing from the transfer of land prescribed by Presidential Decree, which is directly cultivated by the resident prescribed by Presidential Decree, who resides in the location of such farmland for not less than eight years (not later than December 31, 2005, in cases where such farmland in the agricultural promotion area under Article 32 of the Farmland Act is transferred to the Korea Agricultural and Rural Infrastructure Corporation under the Korea Agricultural and Rural Infrastructure Corporation and Farmland Management Fund Act (hereafter in this Article, referred to as the "Korea Agricultural and Rural Infrastructure Corporation") or to the corporation prescribed by Presidential Decree which mainly runs the agricultural business (hereafter in this Article, referred to as the "agricultural corporation"), not later than five years, and not later than three years, in cases where such farmland is transferred to the Korea Agricultural and Rural Infrastructure Corporation or the agricultural corporation, not later than December 31, 2010), which is subject to the taxation of agricultural income tax (including the non-taxation, reduction and exemption, and small collection).

○ Article 133 Comprehensive Limit of Reduction or Exemption of Transfer Income Tax

(1) Where the total amount of transfer income tax to be reduced or exempted for an individual under Articles 43, 69, and 77 of this Act or Article 29 of the Addenda of this Act exceeds 100 million won by taxable period, the amount equivalent to such excessive portion shall not be reduced or exempted. The calculation of the aggregate ceiling of reduction or exemption shall

Addenda

○ Enforcement Date of Article 1

This Act shall enter into force on January 1, 2006.

C. Determination

However, as long as the Plaintiff transferred the farmland of this case to the Plaintiff for expropriation on February 27, 2006, the Restriction of Special Taxation Act that is enforced on the basis of the above transfer date should be applied. Article 133 of the former Restriction of Special Taxation Act, which was enforced at the time of the transfer of this case, is 100 million won by five taxable periods, so the restriction of capital gains tax reduction or exemption for transfer of self-owned farmland for not less than eight years is 100 million won by applying the above provision, the disposition of this case where only 100 million won was reduced or exempted and only the amount exceeded is not in violation of the principle

3. Conclusion

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