Whether a notice of designation of a land scheduled for replotting can be deemed the date of designation of land scheduled for replotting.

Notwithstanding the title, the notification of the designation of the land scheduled for replotting is applicable to the date of designation of the land scheduled for replotting when compiling the fact of notification of the designation of the land scheduled for replotting under the Land Readjustment Projects Act, and the land in this case transferred after three years have elapsed from the date of designation shall not be

Article 69 of the Restriction of Special Taxation Act, Article 66 of the Enforcement Decree of the Restriction of Special Taxation Act

2015Guhap372 Revocation of Disposition rejecting capital gains tax rectification

AA and 8

Head of Namgu Tax Office

July 21, 2015

August 25, 2015

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

The Defendant’s revocation of each disposition of rejection of each of the claims for rectification of capital gains against Plaintiff AA, OO, OO, OO, OO, OO, OO, or OO on July 1, 2014, that was made against Plaintiff OO on July 28, 2014, on September 2, 2014.

A. The plaintiffs acquired OO-O 461.1 square meters, and 12 lots (hereinafter referred to as "the land in this case") from the OO-O O-O 461.1 square meters as shown in the attached Table 1. After that, the land in this case was incorporated into BB district land readjustment project (hereinafter referred to as "the association in this case") on September 23, 1996 according to the establishment and project implementation authorization.

B. Meanwhile, from 2011 to 2014, the Plaintiffs sold the instant land as indicated in the attached Table 1 (hereinafter “instant purchase”) and reported and paid the relevant transfer income tax.

C. After that, PlaintiffOO filed a request for correction of the content of seeking refund of the capital gains tax already paid, on June 10, 2014, PlaintiffOOO on August 26, 2014, and the remainder of Plaintiffs on June 2, 2014, on the ground that the land in this case constitutes a self-sufficient farmland for not less than eight years, which falls under the subject of reduction or exemption of capital gains tax, and thus, the capital gains tax under the sale in this case should be fully reduced or exempted.

D. Accordingly, the Defendant rejected the Plaintiffs’ request for correction on July 1, 2014 for the Plaintiff’s OO on the ground that the instant land was transferred three years after the date of designation of the land scheduled for substitution, and that it is not included in “the reduction or exemption of capital gains tax on self-arable land” as stipulated in Article 69 of the Restriction of Special Taxation Act. Accordingly, the Defendant rejected the Plaintiffs’ request for correction on September 2, 2014 for the Plaintiff’s OO on the ground that it is not included in “the reduction or exemption of capital gains tax on self-arable land” (hereinafter “instant disposition”).

E. The Plaintiffs filed an appeal on September 26, 2014, but the Tax Tribunal dismissed the Plaintiffs on December 4, 2014.

Facts having no dispute over recognition, Gap evidence 1, 2 (including paper numbers; hereinafter the same shall apply), 11-1, 12-1, 12-1, 14-1, 15-1, 16-1, 17-1, 18-1, 19-1, 19-1, 19-1, 19-2, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) On July 19, 2005, the instant association did not designate the land as the land as the land as the land as the land as the land for substitution, but notifies the members of the matters for authorization of the land substitution plan notified by the OOO military office, and thereafter there was no separate designation of the land as the land for substitution. Therefore, the instant land does not fall under the “land as the land for substitution, other than the farmland, for which three years have elapsed from the date of the designation of the land for substitution, where the land as the land for substitution was designated before the land substitution is excluded from capital gains tax pursuant to Article 66(4)2 of the Enforcement Decree of the Restriction of Special Taxation Act.” Nevertheless, the instant disposition based on the premise that the Defendant

2) Even if the instant land was designated as a reserved land for replotting, Plaintiff OO and OOOO acquired the previous land owned by the Plaintiffs on January 1, 1985, and did not appear until May 23, 1997, which was the commencement date of the land creation work, and continued to do so from spring spring around 2010 to the transfer date of each land, regardless of whether to designate a reserved land for replotting, it constitutes reduction or exemption of capital gains tax on self-arable land for at least eight years.

(b) Related statutes;

Attached Form 2 is as shown in the relevant statutes.

(c) Fact of recognition;

1) On February 6, 1995, the project of this case was decided on February 6, 1995 (Seoul Metropolitan City Notice No. 199O-O) and the project implementation authorization (Seoul Metropolitan City Notice No. 1999O-O) on September 23, 1996, and on May 22, 1997, the construction was suspended on August 22, 1997, and DD and land substitution planning services were concluded again on May 202.

2) The instant association as of January 5, 2005 the public inspection period from January 17, 2005 to February 3, 2005, read the project implementation approval and the plan for planned land substitution to its members, and on January 12, 2005, the instant association read the project implementation approval and the plan for planned land substitution to its members.

4. Land readjustment project plan approval (O military urban construction and -5149)

0 Title : Authorization of land readjustment plan for land readjustment project for rice BB

Pursuant to the provisions of Article 47(1) of the Land Rearrangement and Rearrangement Projects Act, with respect to the land readjustment and rearrangement and rearrangement and rearrangement projects of rice BB project for which authorization was granted under Article 96-201 and Article 96-202 of the Daegu Metropolitan City Public Notice ( September 23, 1996), the main time is to ensure that there is no civil petition by the landowners and interested parties due to the authorization of the land substitution plan and the authorization of the land substitution plan as follows:

○ Date of authorization of land substitution plan: July 13, 2005

○ Authorization Conditions: The location, area, effective date, etc. of the land scheduled for substitution shall be notified to the landowner and lessee pursuant to Article 56 of the Land Readjustment Projects Act.

3) On May 9, 2005, the instant association filed an application for authorization for designation of land substitution plan (B. 05-19) with the head of OOO on a land substitution plan (B. 05-19). Each protocol of land substitution attached to the application was written, including the name of Dong, lot number, land category, ledger area, standard area, BL, LT, rights area, land substitution area, excessive amount, etc.

4) On July 13, 2005, the head of the OOO authorized the instant association’s application for authorization of a replotting plan as follows. On the same day, the land creation project resumed in accordance with the authorized replotting plan drawings.

5) On July 19, 2005, the instant association notified the members of the public notice of the designation of the land scheduled for substitution plan (BB No. 05-27) that the instant association was authorized by the “OO-Gun Urban Construction and O-O-O-O ( July 13, 2005), along with the designation report of the land scheduled for substitution plan submitted at the time of applying for the authorization of the land substitution plan (hereinafter referred to as the “instant notice”) pursuant to Article 56(3) of the Land Readjustment Projects Act.

6) From November 2009, some members filed an application for use with the instant association and commenced the use of the reserved land for replotting as of May 15, 2013. As of May 15, 2013, an implementer shall designate the reserved land so that he/she may exercise the same rights as the previous land in lieu of the previous land by the date when the replotting disposition is publicly announced in lieu of the previous land. In such cases, the implementer shall publicly announce it and notify in writing to the owner, and the same shall also apply in the case of alteration: Provided, That the same shall not apply to an alteration to a minor replotting plan pursuant to Article 55 of the Act.

7) In addition to the instant notification, the instant association did not have publicly announced and notified the designation of the reserved land for replotting. Article 38 of the articles of association of the instant association provides for the designation of the reserved land for replotting as follows.

8) On the other hand, on March 15, 2013, the instant project site was surveyed by land owners for the boundary classification, and on November 14, 2014, the head of the instant association sent to the Plaintiffs a written confirmation of land substitution plan stating that “the head of the instant association confirms that the instant land would be subject to the final land substitution disposition according to the land substitution area according to the result of the survey.”

Facts that there is no dispute over recognition, Gap's 1, 3, 4, 20 evidence, and Eul's 3 through 7, respectively.

The purpose of the whole theory

D. Determination

1) Determination as to whether to designate the reserved land for replotting

A) Articles 56(1) through (3) and 12(1) of the former Land Readjustment Act (amended by Act No. 6252, Jan. 28, 200) provide that when it is necessary to implement the land rearrangement project, the implementer may designate the land as a planned land substitution. In this case, the relevant landowner, lessee, etc. shall be notified of the location and size of the planned land substitution and the effective date of the designation as the planned land substitution, and a copy of the relevant documents shall be made available for public inspection for 14 days. Article 57(1) provides that the previous land owner and lessee, etc. may exercise the same rights as that of the previous land from the effective date of the designation as the planned land substitution to the date of the public announcement of the replotting plan, and Article 57(2) provides that the implementer may separately determine the commencement date of the use or profit-making of the land when he designates the planned land substitution pursuant to the provisions of Article 56(1).

Meanwhile, Article 38(1) of the articles of association of the association of this case provides that the implementer shall designate the reserved land for replotting so that he can exercise the same right as the previous land in lieu of the previous land by the date of the public announcement of the disposition of replotting in lieu of the previous land, and in this case the implementer shall publicly announce it and notify its owner in writing, and the same shall also apply to any alteration, but the same shall not apply to any minor alteration. Article 38(2) provides that the person who has been designated as the reserved land for replotting or interested person

B) In light of the following circumstances recognized by the foregoing facts and relevant laws, it is reasonable to deem that the instant notification does not merely constitute notification of the matters authorized for a land substitution plan, but also constitutes notification of the designation of a land substitution plan. The sole statement of the evidence Nos. 5 and 6 alone is insufficient to reverse the said recognition. Therefore, the Plaintiffs’ assertion that the land substitution plan was not designated is groundless.

① The instant association prepared a protocol of land substitution for replotting for the instant project site, including the instant land, and applied for authorization of land substitution plan to the head of OO. The protocol of land substitution for replotting is specified, and the location and area of the land substitution for replotting is specified, and the head of OOO specified the notification of land substitution for replotting as conditions for authorization.

② In accordance with the authorization conditions of the head of theO/Gun, the instant association sent the instant notification to its members, including the Plaintiffs, of the instant land substitution plan, along with a written report of the scheduled land substitution plan. From November 30, 2009 to May 15, 2013, 51 members exercise their rights, such as using and gaining profit from the land substitution in the land substitution plan.

③ According to Articles 56(2) and 12(1) of the former Land Readjustment Projects Act and Article 38(1) of the articles of association of the association of this case, where a project implementer designates a reserved land for replotting, he/she shall make a public inspection and announcement for 14 days, and notify the owner thereof in writing. In addition to the public inspection and announcement of this case and the instant notification, the association of this case did not separately make the public inspection

④ Article 57(1) of the former Land Readjustment Project Act provides that "where a land scheduled for replotting is designated, the same right as that of the previous land scheduled for replotting may be exercised from that time to that of a public announcement of a disposition of replotting," it is difficult to view that the landowner, etc. should be able to use and benefit from the land scheduled for replotting.

⑤ Likewise, there is no basis for interpreting the meaning of "the date of designation of the land scheduled for substitution" under Article 66 (4) 2 of the Enforcement Decree of the Restriction of Special Taxation Act as "after the land scheduled for substitution was actually usable as a site available for construction."

2) Determination as to Plaintiff OO andOO’s assertion

Article 69 (1) of the Restriction of Special Taxation Act provides that capital gains tax shall be reduced or exempted on any income accruing from the transfer of land prescribed by Presidential Decree, among the land directly cultivated by a resident prescribed by Presidential Decree, for at least eight years, and prescribed by Presidential Decree: Provided, That where the relevant land has been designated as a land scheduled for replotting other than farmland prior to a replotting disposition pursuant to the Urban Development Act or other Acts, only the income prescribed by Presidential Decree accrued until the date of such designation shall be reduced or exempted, and Article 66 (4) of the Enforcement Decree of the same Act provides that capital gains tax shall be reduced or exempted only on the income prescribed by Presidential Decree, which accrues until the date of such designation, and "land prescribed by Presidential Decree" under the main sentence of Article 69 (1) of the same Act means the farmland that has been cultivated by himself/herself for at least eight years from

As above, the relevant Acts and subordinate statutes stipulate that capital gains tax shall be reduced or exempted only on the income accrued before the date of the designation of the land scheduled for substitution, and the income accrued after the date of the designation of the land scheduled for substitution does not have any exception provision for reduction or exemption of capital gains tax. As seen earlier, as to the land owned by Plaintiffs OOO and OOO was designated on July 19, 2005, and each land owned by each of the above Plaintiffs was transferred to others after three years have elapsed since the above Plaintiffs were transferred to others, regardless of whether PlaintiffOO and OOO did not own each land until the time of transfer, the land owned by the above Plaintiffs do not constitute the land subject to reduction or exemption of capital gains tax.

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

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed in its entirety on the grounds that it is without merit.

shall be determined as above.