2016 Heavy083 ( December 01, 2016)

Where there is a taxable period in which the total amount of gross pay, etc. is at least 37 million won, it shall not be deemed a self-competitive according to the amended provisions of Article 66 (14) of the Enforcement Decree.

The amended provision of Article 66 (14) of the Enforcement Decree of the Restriction of Special Taxation Act is valid on the basis of the delegation provision of "land prescribed by Presidential Decree among the land cultivated by a resident prescribed by Presidential Decree residing in a location of the farmland for at least eight years" in the main sentence of Article 69 (1) of the Restriction of Special Taxation Act.

Restriction of Special Taxation

Suwon District Court 2017Gudan7027 (No. 15, 2017)

Kim*

○ Head of tax office

2017.09.08

. 15, 2017

1. The plaintiff's claim is dismissed.

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

2. On December 30, 2015, the following facts: (a) the Defendant’s disposition of refusal to pay KRW 131,54,520 on November 5, 2015; (b) the aggregate of KRW 30-146, 27.4, 206, 30-14, 27.46, 27.6, 27.6, 30, 274, 27.6, 274, 27.6, 37, 206, 274, 37.6, 206, 37.6, 47, 207, 206, 275, 274.6, 275, 276, 274,275, 207, 275, 207, 207, 315,207, 207.

1. Details of the disposition;

(1) On June 27, 2014, the Plaintiff acquired several parcels of land (hereinafter referred to as “instant land”). The Plaintiff sold the instant land in KRW 2,421,197,650 as follows to the Korea Land and Housing Corporation, which is a public project operator, in total, KRW 2,421,197,650. On July 15, 2014, the registration of transfer of ownership in the name of the Korea Land and Housing Corporation (the registration date was obtained through consultation on the land for public use on June 27, 2014) was completed.

On September 25, 2014, the Plaintiff reported and paid KRW 206,48,540 of the transfer income tax for the year 2014, based on Article 69 of the Restriction of Special Taxation Act, to the Defendant by applying the following tax base of KRW 1,120,740,781,541,20,000 of the tax amount for 206,481,541, 200,000 of the tax amount for 1,123,240,240, 898 basic capital gains deduction of KRW 1,500,120,740,898, 406, 406,481, 406, 481, 740, 740, 740, 741, 741, 53434, 607, 8138, 306, 4816, 7486

Then, according to the public officials in charge belonging to the defendant that the sum of the plaintiff's total salary, etc. during the holding period of each of the above lands exceeds KRW 37 million a year and that it does not constitute reduction and exemption of self-farmland for eight years, the plaintiff applied only KRW 74,534,293 to the defendant on March 20, 2015, applying only the reduced and exempted capital gains tax for land, etc. for public works based on Article 77 of the Restriction of Special Taxation Act, and additionally paid KRW 338,026,061 for the transfer income tax for the year 2014, and additionally paid KRW 131,54,520 for the difference.

(v) On November 5, 2015, the Plaintiff filed a request for correction with the Defendant to refund KRW 131,54,520 to the Defendant by applying KRW 200,000,000 for self-farmland tax reduction or exemption for eight years as follows (Article 45-2 of the Framework Act on National Taxes).

⑹ 피고는 2015. 12. 30. 원고에 대하여 아래와 같은 이유로 위 경정청구에 관한 거부처분(이하 '이 사건 처분'이라 한다)을 하였다.

"The requirements for reduction or exemption of self-employed farmland under Article 69 of the Restriction of Special Taxation Act, which shall be deemed to exceed 37 million won in business income and earned income base amount from 2002, which is the time of acquisition of the goods by self-employed farmer, and shall be excluded from the self-employed period during that period, and shall not be deemed to have satisfied the self-employed requirement."

⑺ 원고는 2016. 2. 26. 조세심판원에 심판청구를 제기하였으나, 조세심판원은 2016. 12. 21. 위 심판청구를 기각하였다.

⑻ 원고의 사업자등록 및 2002년 이후 종합소득금액 내역은 아래와 같다. 특히 원고는 2002년부터 2014년까지 장성기획에서 약 2억 원 내지 3억 원의 수입이 발생하였고, 2007년부터는 주식회사 애드프라이즈로부터 매년 약 4,000만 원 내지 6,000만 원의 급여를 수령하였다. <사업자등록(계속사업자)> <종합소득금액> 과세표준 및 세액을 말한다)이 세법에 따라 신고하여야 할 과세표준 및 세액을 초과할 때

2. Facts that there is no dispute over the recognition of omission, Gap evidence 1-1 through 4, Gap evidence 2, 3, 4, 6, 7 and 8, Gap evidence 15-3, Eul evidence 16-2, Eul evidence 1, 2, 3 and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

(1) According to the main sentence of Article 69(1) of the Restriction of Special Taxation Act, among the land cultivated by a resident prescribed by Presidential Decree who resides in a location of farmland for at least eight years, the tax amount equivalent to 100/100 of the transfer income tax shall be reduced with respect to the income accruing from the transfer of the land prescribed by Presidential Decree (including a resident residing in a location of farmland). Article 66(1) of the Enforcement Decree of the Restriction of Special Taxation Act provides that ① With respect to the above requirements (including a resident prescribed by Presidential Decree who resides in a location of farmland), a person who resides in a Si/Gun/Gu where farmland has been located for at least eight years, an area located in a Si/Gun/Gu adjacent to such area, and a person who resides in an area within 30km of a straight line from the farmland transfer date and who is a resident under Article 1-2(1)1 of the Income Tax

② As to the above requirements (a direct cultivation in such a manner as prescribed by Presidential Decree), Article 66(13) of the Enforcement Decree of the Restriction of Special Taxation Act provides that "a resident is constantly engaged in the cultivation of the crops or the growing of perennial plants in his own farmland, or a resident is cultivating or cultivating not less than half of the farming works with his own labor in his own farmland."

③ As to the above requirements (land prescribed by Presidential Decree), Article 66(4) of the Enforcement Decree of the Restriction of Special Taxation Act requires that "the farmland which is cultivated by oneself for not less than eight years from the time of acquisition to the time of transfer shall not be subject to a certain exclusion." Article 66(5) of the Enforcement Decree of the Restriction of Special Taxation Act presents the principle that "the farmland subject to the provisions of paragraph (4) shall be based on the farmland as of the date of transfer under Article 162 of the Enforcement Decree of the Income Tax Act as of the date of transfer under Article 162 of the Enforcement Decree of the Restriction of Special Taxation Act." Article 66(11) and (12) of the Enforcement Decree of the Restriction of Special Taxation Act provides

On the other hand, Article 6(14) of the Enforcement Decree of the Restriction of Special Taxation Act (Presidential Decree No. 25211, Feb. 21, 2014) provides that "where there is a taxable period in which the total amount of gross income under Article 20(2) of the same Act is at least 37 million won, the period shall be excluded from the period cultivated by the decedent or resident, and Article 19(2) of the Income Tax Act applies to the same decedent (including his/her spouse; hereinafter the same shall apply) or resident's business income under Article 19(2) of the Income Tax Act (excluding income accruing from agriculture or forestry, income accruing from real estate rental business under Article 45(2) of the Income Tax Act, and side business income of the farm household under Article 9 of the Enforcement Decree of the same Act) and Article 20(2) of the same Act during the period cultivated after July 1, 2014 (proviso to Article 1(1) and (2) of the Enforcement Decree of the same Act).

The plaintiff argues that the revised provisions of Article 66 (14) of the Enforcement Decree of the Restriction of Special Taxation Act are invalid because they are not the grounds for delegation of the Restriction of Special Taxation Act, but the above argument is without merit as follows.

The main sentence of Article 69(1) of the Restriction of Special Taxation Act requires that a resident prescribed by Presidential Decree who resides in a location of farmland for eight years or more should be eligible for reduction of or exemption from the income generated from transfer of land prescribed by Presidential Decree among the land cultivated by means prescribed by Presidential Decree. Of them, Article 66(1) of the Enforcement Decree of the Restriction of Special Taxation Act concerning the above requirements (resident prescribed by Presidential Decree who resides in a location of farmland) and Article 66(13) of the Enforcement Decree of the Restriction of Special Taxation Act concerning the above requirements (self-Cultivating in a manner prescribed by Presidential Decree), and Article 66(4) and (5) of the Enforcement Decree of the Restriction of Special Taxation Act concerning the above requirements (the land

However, Article 66 (14) of the Enforcement Decree of the Restriction of Special Taxation Act provides that "the period of cultivation under paragraph (4), (6), (11) and (12) shall be the period of cultivation.If the total amount of gross pay is not less than 37 million won, the period shall be excluded from the period cultivated by the decedent or the resident."

Meanwhile, Article 69(1) of the Restriction of Special Taxation Act explicitly limits the amount of tax exemption to land prescribed by Presidential Decree among the land cultivated by the residents who reside in the location of such land for not less than eight years by such methods as prescribed by Presidential Decree. Considering the legislative purpose of the above provision for protection of and support for agriculture and the limited scope of preferential measures for tax reduction and exemption from capital gains tax under the above provision, it can be predicted that such restriction is limited to cases where the necessity of land policies is met for 8 years or longer (see Constitutional Court Order 2002Hun-Ba2, Sept. 19, 2002). If the total amount of tax exemption exceeds 370,000 won and the total amount of tax exemption under Article 66(14) of the Enforcement Decree of the Restriction of Special Taxation Act is no longer than 10 years and it is reasonable to exclude the amount of tax exemption from the total amount of tax exemption from the total amount of land for 6 years or more for 6 years or more, the total amount of tax exemption is no longer than 10 years or more than 7 years for farming.

Secondly, the Plaintiff asserts that the exclusion of self-farmland reduction and exemption based on the above revised provision was contrary to the general principles of the Constitution that prohibits retroactive legislation and retroactive application of the Framework Act on National Taxes and the legislative intent of the Framework Act on National Taxes before the enforcement of the above revised provision of the Enforcement Decree of the Restriction of Special Taxation Act for the Plaintiff who already met the requirements for reduction and exemption of self-farmland for eight (8) years prior to the enforcement of the above revised provision, and therefore, the above revised provision of the Enforcement Decree was newly established while the Plaintiff owned the instant land, but at the time of the enforcement of the above revised provision, the taxation requirement of the transfer of the instant land was not yet completed. However, the above revised provision of the Enforcement Decree in the direction of strengthening the taxation requirement cannot be deemed as violating the principle of retroactive taxation prohibition, since it was applied to this case where the taxation requirement of the transfer of the instant land

• The total amount of the business income and total amount received during the period in which the Plaintiff owned the instant land exceeded KRW 37 million as stipulated in Article 66(14) of the Enforcement Decree of the Restriction of Special Taxation Act, and thus, it cannot be deemed that it constitutes reduction and exemption of self-farmland for eight years, and even if it is not so, the disposition of this case which the Plaintiff rejected the Plaintiff’s request for correction is lawful, and there is no assertion by the Plaintiff that it is erroneous.

The plaintiff claimed that the plaintiff transferred the land of this case to the Korea Land and Housing Corporation by planting trees, which were planted in e-dong and ff, the previous business site of this case on the land of this case, which was located in e-dong, e-dong, Seocho-gu, Seoul, through Da-dong, Seoul, and around 192, by leasing the remaining land from the e-dong, Seocho-gu, Seoul and its gwon Culture and seedlings, and cultivating and selling trees with the trade name of the ggwon Culture and seedlings, which is the gwon Culture and Arts, and on April 2002, purchased part of the land of this case. At the time of purchase, the plaintiff transferred the trees and new seedlings and trees that were planted in e-dong and f-dong, which were the business site of this case on the land of this case, and transferred them to the Korea Land and Housing Corporation.

In order to fall under "self-cultivation" among the requirements for reduction or exemption of self-farmland for 8 years, a resident is constantly engaged in the cultivation of crops or the growing of perennial plants on his own farmland, or a resident is engaged in the cultivation or growing with his own labor not less than 1/2 of the farming works on his own farmland. However, it is clear that the plaintiff is not a case where he is engaged in the cultivation of crops or the growing of perennial plants on his own land because he has obtained different occupation and income and has been engaged in the cultivation of the land in this case. Therefore, the plaintiff must prove that "one-half or more of the farming works on his own land in this case" has been "a cultivation or growing with his own labor."

원고가 제출한 주된 증거자료로는, ① 갑 제10호증(한국토지주택공사 작성의 2014. 9. 26.자 토지 등 수용사실 확인서, 원고 소유인 성남시 aa구 bb동 311 토지의 지장물등 즉, 쇠파이프, 알미늄샷시, 철제, 시멘트, 목조합판, 샌드위치판넬, 차광막, 스테인레스 천막, 콘크리트, 견사, 물탱크, 수도대, 펜스, 출입문, 관정, 하수도, 진입로, 배수로, 우수관, 맨홀, 울타리, 배수관, 전기시설, 장식등, 도난경보장치, 바닥돌, 해석, 석등, 서치라이트, 키폰시스템, 나무 지지대, 잔디등, CCTV, 센서등, 간판, 조경석, 대추나무 15년생 235주, 동백나무 25년생 74주를 비롯한 다수의 나무 등에 대한 보상금조로 637,313,670원이 지급되었다는 내용), ② 갑 제11호증(2002. 4. 26. 작성된 농지원부, 원고가 자기 소유인 성남시 aa구 bb동 311 전 5355㎡, 같은 동 317-1 답 234㎡, 같은 동 317-2 전 307㎡, 같은 동 317-3 답 4㎡를 자경하고 있는 것으로 기재되어 있으나, 이 사건 토지의 일부 즉, 성남시 hh구 bb동 311-4 답 1111㎡ 중 1/3 지분, 같은 동 311-6 전 2,776㎡은 농지원부에 기재되어 있지 않다), ③ 갑 제12호증의 1, 2 (II농협 JJ지점과 조합원인 원고 사이의 2005. 1. 1.부터 2014. 9. 4.까지의 거래자 별매출내역), ④ 갑 제14호증(원고의 주민등록초본, 원고가 2000. 2. 24.부터 현재까지 II시 JJ구에 주민등록전입신고를 해두고 있다), ⑤ 갑 제18호증의 1, 2(항공사진, 길쭉하게 생긴 이 사건 토지에 비닐하우스와 나무가 있음이 확인된다)가 있다.

However, there is insufficient evidence to acknowledge that the Plaintiff, while operating another company, obtained global income equivalent to KRW 100 million per annum, has cultivated and cultivated at least 1/2 of the farming work with its own labor by directly planting and tending the trees, which are multi-living plants, on the instant land with a large area equal to 4,432 square meters in total, and there is no other obvious evidence to acknowledge otherwise.

3. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.