Busan High Court 2013Nu55 (Law No. 26, 2013)

The original disposition is legitimate because it is difficult to deem that not less than 1/2 of the farming work was cultivated with his own labor.

At least 1/2 of the farming work, self-labor power means the fact that the phrase directly cultivated without violating the principle of clarity of the taxation requirement and the transferor must prove, so it is difficult to view that at least 1/2 of the farming work was cultivated with his own labor.

Article 69 of the Restriction of Special Taxation Act

2013Du16531 Revocation of Disposition of Imposing capital gains tax

QaA

000 director of the tax office

Busan High Court Decision 2013Nu55 decided July 26, 2013

December 12, 2013

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. As to the third ground for appeal

Whether it is contrary to the principle of clarity of taxation requirements or not requires a comprehensive judgment in accordance with the criteria such as what act can be predicted as being subject to taxation because it falls under the pertinent phrase, which is a taxation requirement, from a taxpayer’s standpoint, whether the uncertainty of the pertinent phrase gives the possibility of applying the law in a arbitrary and discriminatory manner from an administrative agency’s position, or whether it can expect the choice of more conclusive phrases technically in legislation (see Supreme Court Decision 2002Du1588, Sept. 23, 2004).

The lower court determined that Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 23590, Feb. 2, 2012; hereinafter the same) does not violate the principle of clarity of the taxation requirement. In so doing, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors in the misapprehension of the legal doctrine on the principle

2. Regarding ground of appeal No. 2

The principle of non-payment of tax statutes or the principle of prohibition of retroactive taxation is not to apply to the case where any enactment or amendment of tax statutes, or any interpretation or any amendment of the tax authority’s interpretation or management guidelines with respect to the statutes, but not to restrict the application of new Acts and subordinate statutes, etc. to the facts of taxation requirements that have been pending before or after the validity thereof (see, e.g., Supreme Court Decisions 96Nu9423, Oct. 29, 196; 2008Du2736, Oct. 29, 2009).

The lower court determined to the effect that the Plaintiff’s liability to pay capital gains tax on the transfer of the instant land was established on April 12, 2010 on the ground that the Plaintiff’s transfer of the instant land was established only after the enforcement of Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act, and the instant disposition imposing capital gains tax by applying the said provision did not violate

The above determination by the court below is just in accordance with the legal principles as seen earlier, and there is no error in the misapprehension of legal principles as to the principle of prohibition of retroactive taxation.

3. As to ground of appeal No. 1

Article 66(13) of the former Enforcement Decree of the Restriction of Special Taxation Act clearly provides that “The direct cultivation of Article 69(1) of the Act refers to the cultivation of 1/2 or more of the farming work with its own labor or the cultivation of 1/2 or more of the farming work.” Thus, the above provision should be interpreted as a grammatic and determined as to whether it constitutes such provision (see Supreme Court Decision 2010Du8423, Sept. 30, 2010). The fact that the assigned land directly cultivated under the above provision must be proved by the transferor who asserts it (see Supreme Court Decision 90Nu639, May 22, 1990).” In light of the facts and circumstances stated in its reasoning, the lower court determined that it is difficult for the Plaintiff to deem that the Plaintiff cultivated 1/2 or more of the farming work with its own labor while growing it with its own labor.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of the principle of free evaluation of evidence.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.