Changwon District Court-2017-Gu Partnership-52151 ( October 27, 2018)

The provisions of the proviso of Article 168-8 (2) of the Enforcement Decree of the Income Tax Act are not contrary to the principle of non-payment of tax statutes and not exceeding the limit of delegated legislation

Article 168-8 (2) of the Enforcement Decree of the Income Tax Act, which excludes the taxable period in which the total amount of business income and earned income of farmland owners is 3.7 million won or more from the self-defense period, does not go against the principle of non-payment in tax statutes, etc.

Standard for period of non-business land under Article 168-6 of the Enforcement Decree of the Income Tax Act

The scope of farmland under Article 168-8 of the Enforcement Decree of the Income Tax Act

(C)The revocation of the disposition imposing capital gains tax

KimA

The director of the tax office of Luxembourg

Changwon District Court Decision 2017Guhap52151 Decided June 27, 2018

September 19, 2018

October 24, 2018

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance court is revoked. The defendant's rejection disposition against the plaintiff on September 20, 2016 (the plaintiff is not a disposition of June 30, 2016 but a lawsuit of this case is filed following the filing of an objection and a tax appeal against the rejection disposition against the request for correction, and thus the plaintiff seeks revocation of the rejection disposition against the request for correction.)

1. Quotation of judgment of the first instance;

The court's explanation on this case is identical to the reasoning of the judgment of the court of first instance, except for dismissal or addition as follows. Thus, it is acceptable to accept this as it is in accordance with Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Parts in height:

○ The 16th to 20th of the first instance court's 2th of the two pages are as follows.

In the following reasons, the Plaintiff heard from the Defendant that the instant land constitutes non-business land under Article 104-3 (1) 1 (a) of the former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016; hereinafter referred to as the “former Income Tax Act”) and returned KRW 513,16,367 for the instant land by applying the tax rate aggravated pursuant to Article 104 (1) 8 of the former Income Tax Act on the premise that the instant land falls under "non-business land" on May 2016.

○ The first instance court's 3 pages 18, 19 are as follows.

On July 26, 2016, the Plaintiff filed a claim for correction with the Defendant to the effect that the instant land does not constitute non-business land, thereby reducing the capital gains tax of the instant land to KRW 513,166,367 to KRW 275,445,528, but the Defendant notified the Defendant of his refusal of the claim for correction on September 20, 2016 (hereinafter “instant disposition”).

G. The Plaintiff filed an appeal on January 16, 2017 with the purport of seeking the revocation of the instant disposition on November 1, 2016, but the appeal was dismissed on April 24, 2017.

3. Additional determination

A. The plaintiff's assertion

The latter part of Article 168-8 (2) of the former Enforcement Decree of the Income Tax Act (hereinafter referred to as the "amended provision of this case") is a provision that stipulates that the period of self-determination may be determined differently with respect to farmland for which the period of self-determination has already been met before its enforcement, without any transitional provision or grace provision, and thus, it infringes on the trust of the plaintiff and the same person who met the requirements for self-determination of farmland excluded from non-business land. Thus, the amended provision of this case is invalid because it violates the principle of trust protection, and the disposition of this case based on the amended provision of this case

B. Determination

1) In the amendment of the former Act, if the trust of the parties to the existence of the statute is reasonable and reasonable, and if the public interest purpose of the amendment of the statute is not justified because the party’s damage caused by the amendment of the statute is so severe that the destruction of such trust cannot be justified, the legislators should take appropriate measures to protect the parties’ trust, such as setting a transitional provision, and it is not permissible to implement or apply the new statute without any appropriate measure. This is because it violates the principle of protection of trust derived from the principle of the rule of law, which is the basic principle of the Constitution.

In order to determine whether the principle of trust protection is violated, on the one hand, the purpose of public interest realized through new laws and regulations should be comprehensively compared and balanced, on the other hand, such as the value of the infringed benefit, the gravity of the infringement, the degree of damage to the trust, the degree of damage to the trust, and the method of infringement (see Supreme Court Decision 2003Du12899, Nov. 16, 2006).

2) The following circumstances are: (i) as the State needs to flexibly and reasonably operate tax and financial policies in the area of tax law, tax laws and regulations and systems are very significant; (ii) the current tax rate should be maintained in the future unless there are special circumstances, barring any special circumstance; (iii) Article 66(14) of the Enforcement Decree of the Restriction of Special Taxation Act on the Determination of the Voluntary Period of Farmland Reduction and Exemption, which is applicable mutatis mutandis, has already been promulgated on February 21, 2014 and enforced on July 1, 2014, it seems that the same standard can be applied to farmland as non-business land; and (iii) even if the instant revised provision is applied mutatis mutandis to farmland, it is difficult for a person who is not an owner of farmland to have more than 37 million won or more than reliance in the total amount of farmland to be excluded from the total amount of income for non-business land, in light of Article 66(14) of the former Enforcement Decree of the Restriction of Special Taxation Act, to be excluded from the total amount of farmland for which it can be applied in principle.

3) Therefore, the Plaintiff’s above assertion is without merit.

4. Conclusion

Therefore, the judgment of the court of first instance is just and the plaintiff's appeal is dismissed. It is so decided as per Disposition.