Early High Court Decision 2010J 0817 (Law No. 28, 2010)

Where an application for reduction or exemption is not filed, it shall not be subject to a reduction or exemption of gift tax for farming children.

Farming children who intend to be exempted from gift tax shall apply for reduction or exemption of gift tax by the deadline for the tax base return of gift tax.

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

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Head of Suwon Tax Office

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of gift tax of KRW 63,559,510 against the Plaintiff on August 5, 2009 is revoked.

1. Details of the disposition;

A. On March 27, 2008, the Plaintiff: (a) from his husband’s father on March 27, 2008, ○○○○○ ○○ ○○ 579-1, 579-2, 628 square meters prior to the same Ri; (b) 478 square meters prior to the same Ri 583 square meters; (c) 4773 square meters prior to the same Ri 583 square meters; (d) 559 square meters prior to the same Ri 479 square meters; (e) 153 square meters prior to the same Ri 631 square meters; (e) 661 square meters of the same Ri 661 square meters; (e) 230-3 square meters prior to the same Ri 230-3 square meters; and (e) did not report and pay the gift tax after receiving the gift tax.

B. On August 5, 2009, the Defendant imposed gift tax of KRW 63,559,510 on the farmland of this case on the Plaintiff (hereinafter “instant disposition”).

C. On October 28, 2009, the Plaintiff appealed to the director of the Central Tax Tribunal and filed a request for a trial with the Tax Tribunal on February 26, 2010, but was decided to dismiss the request on May 28, 2010.

[Reasons for Recognition] The purport of the whole pleadings as stated in Gap evidence Nos. 1. 1. 2. 6 through 10 (including each number)

2. Whether the disposition is lawful;

A. The parties' assertion

The Plaintiff cultivated AA Tae and the instant farmland for at least 20 years. However, the instant disposition that imposed gift tax on the Plaintiff upon the Plaintiff who met the requirements for exemption and reduction of gift tax on the farmland donated to a farming child under Article 71 of the Restriction of Special Taxation Act (hereinafter “Special Taxation Act”) was unlawful, inasmuch as AA Tae had cultivated the instant farmland directly from the end of 2004, which became worse due to the aggravation of hive disc.

피고는 이에 대하여, 원고는 조세특례제한법 제71조에 따라 영농자녀에 대한 증여세 감면신청을 하지 않았고, 1996년부터 2008년까지 @@다이캐스팅 주식회사와 **조명 주식회사에 근무하였으므로 AA태가 이 사건 농지상에서 농사를 짓는 것을 도와준 것 뿐 으로 보이는 바, 결국 증여일로부터 소급하여 3년 이상 및 증여일 이후 계속하여 이 사건 농지를 직접 경작한 영농자녀로 볼 수 없는 원고에게 조세특례제한법 제71조가 정한 증여세 감면규정을 배제한 이 사건 처분은 적법하다.

(b) Statutes;

It is as shown in the attached Table related statutes.

C. Determination

According to Article 71(7) of the Restriction of Special Taxation Act, farming children who wish to have gift tax reduced or exempted shall file an application for reduction or exemption as prescribed by the Presidential Decree by the deadline for filing a standard return on gift tax, and shall not apply to the case where they did not file an application for special exemption by the deadline for filing a return. However, there is no evidence to deem that the Plaintiff received the farmland in this case from AA to have filed an application for reduction or exemption by the deadline for filing a return on the tax base of gift tax. However,

Therefore, the plaintiff's claim is without merit as to whether the requirements for gift tax reduction and exemption for farming children under Article 71 of the Restriction of Special Taxation Act are satisfied.

3. Conclusion

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