early 2014 Middle 4319 ( December 23, 2014)

The propriety of the disposition of taxation denied the application of the farming inheritance deduction in case where the parent-child who died within 2 years and gets succeeded to the farmland again;

As a requirement of the farming inheritance deduction, only the term "farmland used for farming before two years prior to the commencement date of the inheritance date" is stipulated as "farmland owned by the decedent two years prior to the commencement date of the inheritance date", and it cannot be excluded from the eligibility of the farming inheritance deduction on the ground that the decedent did not meet the requirement that the decedent was a farmland owned by the decedent two years prior to the commencement date of the inheritance date, such as

Article 18 (Basic Deductions) of the Inheritance Tax and Gift Tax Act

Article 16 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act

revocation of revocation of disposition of imposition of inheritance tax by the District Court 2015 Guhap741

DelegationO

O Head of tax office

December 15, 2015

2016.01.26

1. The Defendant’s imposition of KRW 286,287,670 (including additional tax) against the Plaintiff on February 14, 2014 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

가. 권〇〇는 〇〇시 〇〇구 〇〇동 〇〇번지 답 3,359㎡ 외 7필지(이하 '이 사건 농지'라 한다)의 소유자로서 배우자 이〇〇와 함께 이 사건 농지를 영농에 사용하던 중 2010. 3. 12. 사망하였다.

나. 이〇〇는 권〇〇로부터 이 사건 농지를 상속받고, 이 사건 농지에 대하여 구 상속세 및 증여세법(2010. 12. 27. 법률 제10411호로 개정되기 전의 것) 제18조 제2항 제2호에 의한 영농상속공제를 적용하여 피고에게 상속세를 신고・납부하였다.

다. 이〇〇가 2012. 2. 20. 사망하자 원고를 포함한 이〇〇의 상속인들은 상속재산

The plaintiff succeeded to the farmland of this case through consultation division.

D. On August 29, 2012, the Plaintiff calculated the tax base of inherited property as KRW 1,514,158,689 by applying the farming inheritance deduction for the instant farmland pursuant to Article 18(2)2 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 11609, Jan. 1, 2013; hereinafter “former Inheritance Tax and Gift Tax Act”) to the Defendant, and reported and paid KRW 35,204,460 of the inheritance tax.

D. On February 14, 2014, the Defendant denied the application of the farming inheritance deduction under the former Inheritance Tax and Gift Tax Act, and the Plaintiff.

Inheritance Tax 286,287,670 won was corrected and notified (hereinafter referred to as "disposition of this case").

마. 원고는 이의신청을 거친 후 2014. 8. 12. 조세심판원에 행정심판을 청구하였으나, 조세심판원은 이〇〇가 이 사건 농지를 소유한 기간이 2년 미만(권정호의 사망일인 2010. 3. 12.부터 이〇〇의 사망일인 2012. 2. 20.까지)이라는 이유로 원고의 이 사건 농지 상속은 영농상속공제 대상이 아니라고 보아 2014. 12. 23. 원고의 청구를 기각하였다.

[Grounds for recognition] Gap evidence Nos. 1, 2, Eul evidence Nos. 1 to 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

The Plaintiff asserts that Article 16(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 24368, Feb. 15, 2013; hereinafter “former Enforcement Decree of the Inheritance Tax and Gift Tax Act”) only provides that “farmland used by the decedent for farming before two years prior to the commencement date of the inheritance shall be subject to the deduction of farming inheritance, and that “farmland owned by the decedent before two years prior to the commencement date of the inheritance” is illegal since the measure of this case was not owned by the decedent two years prior to the commencement date of the inheritance.

In regard to this, the defendant asserts that the purport of Article 16 (1) 1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act stipulated that "farmland used for farming before two years prior to the commencement date of the inheritance is to prevent an ancestor from acquiring farmland before the commencement date of the inheritance and allowing the heir to evade inheritance tax by the farming inheritance mutual aid system. Thus, the defendant asserts that the farmland should be subject to the deduction for farming inheritance only when the ancestor has owned two years prior to the commencement date of the inheritance.

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

Article 16 (1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act refers to the farming of the decedent(s) who succeeds to farming.

In cases where a decedent engaged in fisheries and forestry; hereafter the same shall apply in this Article), among inherited property, the inherited property refers to the inheritance of all of the following property used by the decedent for farming for two years before the date on which the inheritance commences (hereafter referred to as "agricultural property" in this Article), and Article 2 subparagraph 1 (a) of the Farmland Act provides for farmland under subparagraph 1 (a) of Article 2 of the same Act. Thus, the interpretation of tax laws and regulations shall be interpreted in accordance with the legal text, barring any special circumstance, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds:

Article 16 (1) 1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "farmland used for farming before two years prior to the commencement date of the inheritance" as the requirement of the farming inheritance deduction under Article 18 (2) 2 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, and does not stipulate "farmland used for farming before two years prior to the commencement date of the inheritance date" as the requirement. The purport of recognizing the farming inheritance deduction deduction only for farmland used for farming before two years prior to the commencement date of the inheritance date of the inheritance without the intention to actually use for farming is to prevent the act of receiving the farming inheritance deduction by satisfying the requirements of the farming inheritance deduction before the commencement date of the inheritance date. In addition, "owned farmland" is to be added to the requirements of "owned by the decedent two years prior to the commencement date of the inheritance date of the inheritance date" as in this case, in view of the fact that there may be cases where the decedent had been engaged directly in farming until two years prior to the commencement date of the inheritance, and it is unreasonable that "farmland used by the decedent prior to the commencement date of inheritance date".

Therefore, the Plaintiff’s inheritance of this case cannot be excluded from the subject of a farming inheritance deduction on the ground that the decedent, not stipulated in Article 16(1)1 of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act, failed to meet the requirement that the decedent would be a farmland owned from two years before the commencement date of inheritance. The instant disposition made on a different premise is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.

Related Acts and subordinate statutes.

former Inheritance Tax and Gift Tax Act (Amended by Act No. 11609, Jan. 1, 2013)

Article 18 (Basic Deductions)

(2) Where inheritance commences due to the death of a resident, any of the following amounts shall be deducted from the taxable value of inherited property:

2. Succession to farming [including farming, fishing, and forestry; hereafter the same shall apply in this Article]: The value of the inherited farming property (where the value exceeds 500 million won, it shall be limited to 500 million won);

Enforcement Decree of the former Inheritance Tax and Gift Tax Act (Amended by Presidential Decree No. 24368, Feb. 15, 2013)

Article 16 (Succession to Farming)

(1) "Inheritance to farming" in the provisions of Article 18 (2) through (5) of the Act means inheritance of all of the following property used by an ancestor for farming (hereafter in this Article, referred to as "property inherited to farming") from among the inherited property, which is inherited by an ancestor who works for farming, among the heirs, when the decedent has engaged in farming (including farming, fishing, and forest; hereafter the same shall apply in this Article):

1. Farmland defined in subparagraph 1 (a) of Article 2 of the Farmland Act;