(a) The meaning of Article 5 subparagraph 6 (j) of the Income Tax Act, Article 14 (7) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12564 of Dec. 31, 1988) which is the object of non-taxation of capital gains tax and the meaning of "self-defluence"

B. Whether Article 55-5 (1) 1 of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 12566 of Dec. 31, 198), which stipulates that a self-employed farmer shall reside in the same or adjacent Si/Eup/Myeon as the location of the farmland, etc. in question, applies to Article 5-5 (1) 6 (j) of the Income Tax Act (negative)

A. Article 5 subparagraph 6 (j) of the Income Tax Act and Article 14 (7) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12564 of Dec. 31, 198) are subject to non-taxation of capital gains tax under Article 5 subparagraph 6 (j) of the former Income Tax Act on the premise that not only the previous land and the newly acquired land are farmland but also the transferor should own the land at the time of the transfer of the previous land, but also the transferor should acquire new land for the purpose of self-defising, and that self-defising the farmland means that he does not form a farming house at his own own expense and responsibility, and does not mean directly rice field

B. Article 55-5 (1) 1 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 12566, Dec. 31, 198) provides that a self-employed farmer shall reside in the same or adjacent Si/Eup/Myeon as the location of the farmland, etc., but this provision refers to a case where a lineal ascendant, descendant, sibling, and sibling mutually transfers the farmland, and Article 67-6 (1) of the Regulation of Tax Reduction and Exemption Act does not apply to Article 5 subparagraph 6 (j) of the Income Tax Act.

A. (B) Article 5 subparagraph 6 (j) of the Income Tax Act, Article 14 (7) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12564 of Dec. 31, 198), Article 67-6 (1) of the Regulation of Tax Reduction and Exemption Act, Article 55-5 (1) 1 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 12566 of Dec. 31, 198)

Supreme Court Decision 87Nu706 delivered on March 8, 198 (Gong1988,694) 89Nu4567 delivered on February 27, 1990 (Gong1990,818) 90Nu639 delivered on May 22, 1990 (Gong190,1393) 91Nu2007 delivered on May 24, 1991

[Judgment of the court below]

The Director of the Pacific District Office

Seoul High Court Decision 89Gu16470 delivered on January 17, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

As to the ground of appeal by Defendant Litigation Performers

Subparagraph 6 (j) of Article 5 of the Income Tax Act provides that no income tax shall be imposed on capital gains accruing from substituted farmland for farmland falling under such cases as determined by the Presidential Decree in order to protect farmers and promote the development and encouragement of agriculture by allowing free substitution of farmland, and Article 14 (7) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12564 of Dec. 31, 198) provides that in case of farmland substituted for cultivation as provided for in the above Presidential Decree, the acquisition of other farmland within one year from the date of transfer of the previous farmland is within one year from the date of transfer of the previous farmland: (b) in case where another farmland is acquired within one year from the date of transfer of the previous farmland; (c) in case where the area of new farmland acquired is above the area of the farmland to be transferred or above a half of the value of the farmland to be transferred, it means not only the previous land and new land to be acquired by the transferor at the time of transfer, but also the transferor is required to do so and it is not under the premise that the owner will acquire new farmland.

In addition, Article 55-5 (1) 1 of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 12566, Dec. 31, 198) provides that a self-employed farmer shall be a person who resides in a Si (including the Seoul Special Metropolitan City and Metropolitan Cities), Eup, Myeon, or a Si, Eup, or Myeon adjacent to the Si, Eup, or Myeon in which the farmland, etc. is located, but this provision does not apply to the case where a lineal ascendant, descendant, or sibling under Article 67-6 (1) of the Regulation of Tax Reduction and Exemption Act transfers his own farmland to one another, and Article 5 (6) 6 (j) of the Income Tax Act does not apply to the case

According to the reasoning of the judgment below, the court below held on August 1, 1986 that the plaintiff acquired the 1,643 square meters of Gyeonggi-gun (No. 1 omitted) 1,643 square meters (the land in this case), and acquired the 3,065 square meters of Gyeonggi-gun (No. 2 omitted) on May 17, 198 due to the necessity for cultivation, such as the expansion of cultivated farmland, and that the land in this case was transferred within one year from the date of its acquisition, and that the disposition of this case was unlawful, since the income from the transfer of the land in this case constitutes the non-taxation subject to income tax under subparagraph 6 (j) of Article 5 of the Income Tax Act, which constitutes the non-taxation subject to income tax under subparagraph 6 (j) of Article 5 of the Income Tax Act. This decision is just and there is no violation of law

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.

Justices Park Jong-dong (Presiding Justice)