It does not meet the requirements for reduction or exemption of substitute farmland.

The plaintiff's farmland in each case cannot be recognized as the plaintiff's claim because the plaintiff's claim is not satisfied among the requirements for reduction and exemption of substitute land under Article 70 of the Restriction of Special Taxation Act. Therefore, the disposition in this case

Article 70 of the Restriction of Special Taxation Act

2014Guhap139 Demanding the refund of capital gains tax, revocation of disposition, or revocation of imposition

o

Head of North Daegu Tax Office

July 2, 2014

August 1, 2014

1. Of the instant lawsuits, the part concerning the revocation of the disposition imposing capital gains tax for the year 2007 and the request for revocation of the disposition imposing capital gains tax for the year 2010 shall be dismissed, respectively.

2. The plaintiff's remaining claims are dismissed.

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

The defendant shall decide and notify the plaintiff 251,520 won of the capital gains tax belonging to the year 2007, May 17, 2007.

The portion shall be revoked, and the refund of 251,520 won of the capital gains tax for the year 2007 paid on May 25, 2007 shall be determined.

C. On August 10, 201, the determination and notification disposition of KRW 8,308,090 for capital gains tax for the year 2010 shall be revoked;

Aggregate of the capital gains tax of 5,126,070 won and the special rural development tax of 216,190 won for the year 2009, September 2, 2013

Determination and notice of KRW 5,342,260 shall be revoked respectively.

1. Details of the disposition;

(a) Imposition of transfer income tax for the year 2007 in relation to the transfer of Daegu-dong land;

1) On March 15, 2007, the Plaintiff completed the registration of transfer of ownership on the ground of a consultation on the 12th day of the same month in the name of Hoo with respect to 50 square meters, prior to 413-1, prior to 414 square meters (hereinafter “land”).

2) On May 2, 2007, the Plaintiff completed the registration of transfer of ownership under one’s name on the ground of sale by voluntary auction (Ooo Ho Hohohohohohoho on January 7, 2011, hereinafter referred to as “alternative land”) on April 24, 2007.

3) On May 17, 2007, the Plaintiff filed a report on capital gains tax for the year 2007 on the land (transfer value: KRW 17,250,00, KRW 411-4 land, KRW 49,680,00). On March 25, 2007, the Plaintiff paid KRW 245,460, KRW 6,080 to the Defendant for the capital gains tax for the year 2007, KRW 251,520.4) on March 9, 2012, the Plaintiff filed an application with the Defendant to the effect that “A request for refund of capital gains tax due to the acceptance of land ① as substitute land was acquired,” and the Defendant rejected it on the ground that the Plaintiff failed to meet resident requirements on March 16, 2012, and subsequently filed a request for grievance settlement with the Defendant around June 2013, the Plaintiff did not meet resident requirements.

5) The Plaintiff dissatisfied with the request for adjudication on July 25, 2013. However, the Tax Tribunal rendered a decision of rejection on October 22, 2013 on the ground that “A civil petition for grievance is not a regular objection procedure,” but a request for correction is filed on the ground that the Plaintiff’s filing of a civil petition for grievance on March 15, 2012 after three years from May 31, 2008, the statutory due date of return of capital gains tax base and tax amount on farmland, which was the legal return date of the Plaintiff’s request for correction.”

(b) Disposition of imposition of capital gains tax for the year 2010 on the transfer ofo land;

1) On May 27, 2010, the Plaintiff completed the registration of transfer of ownership on the ground of a consultation on the same day with respect to the land owned by himself/herself, 76 square meters, 619-3 square meters in the same Ri and 405 square meters in the name ofo on the 26th day of the same month. On July 6, 2010, the Plaintiff completed the registration of transfer of ownership on the ground of a consultation on the same day with respect to the land owned by himself/herself on the 619 square meters in the same Ri and 619-1 square meters in the same Ri and 619 square meters in the same Ri (hereinafter referred to as “B land”).

2) After that, on April 26, 2012, the Plaintiff served a notice for payment of capital gains tax for over 2010 years for the transfer income tax (hereinafter referred to as “instant residence”) on the 1/4 shares (hereinafter referred to as “B substitute land”) out of 3,456 square meters of oo 373 square meters on April 26, 201, on the ground of sale by compulsory auction of 20th of the same month, and completed the registration of ownership transfer in its own name. 3) The Defendant returned both the registered mail and the address of the Plaintiff on August 12, 2011 and September 28, 201 on the ground that the Plaintiff did not report the transfer income tax on the land. However, the Defendant returned the registered mail on August 31, 2011 and the changed payment period on October 15, 2011 as the address of the Plaintiff on August 23, 2011.

4) Accordingly, a public official in charge of the Defendant made a telephone conversation with the Plaintiff, and the Plaintiff visited the Plaintiff to the present address and intended to deliver the instant residence. However, the Plaintiff did not serve the Plaintiff as well. Ultimately, on October 26, 2011, the Defendant served a notice of tax payment (including additional tax on November 23, 2011) for capital gains tax of 8,308,090 (including additional tax) accrued in 2010 on the Plaintiff. 5) On July 15, 2013, the Plaintiff filed an application with the Defendant for grievance settlement with the effect that the Plaintiff would seek for reduction or exemption of capital gains tax since the Plaintiff received compensation for expropriation of the land and acquired substitute land. On July 22, 2013, the Defendant presented an opinion on civil petitions for grievances with the purport that the Plaintiff failed to meet the resident requirements.

6) On August 7, 2013, the Plaintiff appealed and claimed for adjudication on August 7, 2013, but the Tax Tribunal made a decision to dismiss the Plaintiff’s appeal on the grounds that the Plaintiff filed a request for adjudication after the lapse of 90 days from the date of service of the tax payment notice.

(c) Disposition on imposition of capital gains tax for the year 2009 in relation to theo land;

1) On April 10, 2009, Hoo completed the registration of ownership transfer in its own future on the ground of sale as of the same day with respect to the area of 502 square meters, 226-30 square meters, 74 square meters prior to 226-36, and 84 square meters prior to the same day owned by the Plaintiff on April 10, 209, and on October 12, 2010 with respect to the area of 226-35 square meters prior to the same date owned by the Plaintiff on September 8, 2010 (hereinafter referred to as “each of the above land”).

2) On February 10, 2010, the Plaintiff completed the registration of ownership transfer on the ground of the sale by voluntary auction on the 1st day of the same month with respect to the 671m2, o-do 713m2, 714m2, 1,669m2, 715m2,030m2 (hereinafter “third substitute land”).

3) On June 18, 2013, the Defendant notified the Plaintiff of the pre-announcement of taxation on the ground that the Plaintiff had not reported capital gains tax on the land ③ The Plaintiff appealed and filed a request for a pre-assessment review to the Defendant on August 2, 2013. However, on September 1, 2013, the Defendant decided not to adopt capital gains tax on the 22th of the same month, and on September 1, 2013, issued a correction and notification (including additional tax) of the total amount of KRW 5,342,260 (including additional tax) of capital gains tax on the Plaintiff for the year 2009 and KRW 5,126,070 (hereinafter “instant disposition”).

4) The Plaintiff dissatisfied with the request for judgment on September 13, 2013. However, the Tax Tribunal rendered a decision to dismiss the request on November 28, 2013. Meanwhile, the Plaintiff continued to reside therein on August 24, 2004 after moving into the instant residence, and the instant residence and land are at least 30 km, and there is no connection with oo where the instant residence is located.

Facts without any dispute, Gap's 1 through 15, 28, 31, Eul's 1 through 14 (including each number), the purport of the whole pleadings.

2. Determination on the main defense, etc.

A. Determination on the claim for revocation of imposition of capital gains tax for the year 2007

1) The Plaintiff asserts that the Defendant’s imposition and notification of capital gains tax on May 17, 2007 with respect to the substitute land, which was acquired as a substitute land, was unlawful and sought revocation of the said disposition against the Defendant. In this regard, the Defendant asserts to the effect that the period for filing a request for correction under the Framework Act on National Taxes expires for three years, and that the disposition subject to appeal is unlawful due to the absence

2) The existence of an administrative disposition, which is subject to litigation in an administrative litigation, is a lawful requirement (see Supreme Court Decision 96Nu6707, Aug. 26, 1997). There is no evidence to acknowledge that the Defendant imposed and notified the Plaintiff of the transfer income tax for the year 2007 on May 17, 2007. Rather, as seen earlier, the Plaintiff reported the transfer income tax on the land on May 17, 2007. On May 25, 2007, the Plaintiff paid the Defendant KRW 245,460, the transfer income tax for the rural development tax for the year 2007, and KRW 251,520, total amount of KRW 251,520, which is the object of administrative litigation. Accordingly, the Plaintiff’s lawsuit is unlawful because it has no disposition that becomes the object of administrative litigation.

B. Determination on the part of the claim for refund decision of capital gains tax reverted to year 2007

On the other hand, under the Administrative Litigation Act, a lawsuit seeking an execution judgment ordering an administrative agency to take a certain administrative disposition, or a lawsuit seeking a formation judgment ordering an administrative agency to directly conduct an administrative disposition having the same effect as having taken a certain administrative disposition is not allowed (see, e.g., Supreme Court Decision 97Nu3200, Sept. 30, 1997). This part of the lawsuit stating that "the defendant is entitled to refund capital gains tax of 251,520,00 won paid on May 25, 2007 to the plaintiff," which constitutes a performance suit seeking a performance judgment seeking a performance judgment ordering the plaintiff to actively perform a certain act against the defendant who is an administrative agency. Determination on the part concerning the claim for revocation of the disposition imposing capital gains tax for the year 2010 is unlawful.

1) The Plaintiff asserts that the Defendant’s imposition and notification of KRW 8,308,090 for the transfer income tax corresponding to the year 2010 on the substitute land was unlawful and that its revocation is unlawful. In this regard, the Defendant asserts that the Plaintiff’s filing of a lawsuit is unlawful by filing a lawsuit after the lapse of the filing period.

2) Article 20(1) of the Administrative Litigation Act provides that a revocation lawsuit shall be filed within 90 days from the date on which the disposition, etc. is known, and Article 20(2) provides that a revocation lawsuit shall not be filed after the lapse of one year from the date on which the disposition, etc. is taken. "the date on which the existence of a disposition, which is the starting point of the filing period of the lawsuit, is known" means the date on which the party becomes aware of the fact that the relevant disposition was taken by notice, public notice or any other means (see Supreme Court Decision 2005Du14851, Apr. 28, 2006). Meanwhile, Article 11(1) of the Framework Act on National Taxes provides that "in cases where a person who is obliged to receive documents falls under any of the following subparagraphs, documents pursuant to Article 8 shall be deemed to have been served after the lapse of 14 days from the date on which the summary of the documents are notified, but it is difficult to serve documents pursuant to Article 10(4).2).1) of the Enforcement Decree by visiting of the Act.

According to the above facts, the defendant served a tax payment notice on two occasions on the plaintiff's domicile of this case by registered mail, but returned the tax payment notice to the plaintiff's domicile of this case. In other words, the defendant did not return the tax payment notice by visiting the domicile of this case but failed to deliver it by the plaintiff's absence. Around that time, the payment deadline for the above disposition was overdue, it is reasonable to deem that service by public notice on the above disposition satisfies the requirements under Article 11 (1) 3 of the Framework Act on National Taxes and Article 7-2 (1) 1 of the Enforcement Decree of the same Act. Therefore, it is apparent in the record that the plaintiff filed the lawsuit of this case on January 14, 2014, which is one year after the expiration of 14 days from October 26, 2011, which is the date service by public notice.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff acquired the substitute land (3) with compensation for the expropriation of the land, and thus the instant disposition on the land is unlawful.

2) The Plaintiff (3) had a lot of land acquired substitute land with compensation for expropriation of farmland, etc. identical or similar to the land, and during that period, there was no transfer income tax voluntarily paid and all transfer income tax was reduced or exempted. Therefore, the instant disposition does not comply with equity.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination on the first argument

Article 70 (1) of the Restriction of Special Taxation Act provides that the tax amount equivalent to 100/100 of capital gains tax shall be reduced or exempted for income accruing from substitute land which is farmland prescribed by Presidential Decree by a resident prescribed by Presidential Decree who resides in the seat of farmland in a manner prescribed by Presidential Decree due to necessity for cultivation, and Article 67 (1) of the former Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 25211, Feb. 21, 2014) provides that "resident prescribed by Presidential Decree" under Article 70 (1) of the Act means a resident (including a person who is an autonomous Gu) who resides in a Si/Gun/Gu (referring to a Gu) in which farmland has been located for at least three years, a Si/Gun/Gu (referring to an autonomous Gu) adjacent to an area referred to in subparagraph 1, and a person who resides in an area falling under subparagraph 20 kilometers in a straight line from the farmland in a straight line (subparagraph 3) and who is a resident under Article 1-2 (1) 1) 1 of the Income Tax Act as of the transfer date.

위 인정사실 및 관련규정에 의하여 알 수 있는 다음의 각 사정, 즉 ㉠ 구 조세특례제한법 시행령 제67조 제1항 제1호, 제2호에서 시ㆍ군과 별도로 구를 규정하고 있으므로, 양도소득세 감면대상에 해당하기 위해서는 자치구인 구가 설치된 시의 경우에는 해당 시가 아닌 해당 구에 연접하여야 하는 것으로 해석되는 점, ㉡ 원고는 2004. 8. 24. 이 사건 거주지에 전입한 이후로 계속하여 그곳에 거주하고 있는 점, ㉢ 이 사건 거주지 소재지인 대구광역시 북구와 ③토지 소재지인 영천시는 연접하고 있지 아니한 점, ㉣ 이 사건 거주지와 ③토지는 30㎞ 이상이 떨어져 있는 점 등에 비추어 보면, 원고는 조세특례제한법 제70조 제1항, 같은 법 시행령 제67조 제1항에서 규정한 거주자에 해당되지 아니한다고 봄이 타당하다. 따라서 원고의 위 주장은 이유 없다.

2) Judgment on the second argument

(3) As long as the acquisition of substitute land by the Plaintiff does not meet the requirements for reduction or exemption of capital gains tax under Article 70 (1) of the Restriction of Special Taxation Act and Article 70 (1) of the Enforcement Decree of the same Act, it cannot be said that it violates equity in comparison with the case of other land acquired by the Plaintiff. Therefore, the Plaintiff’s above assertion is without merit.

4. Conclusion

Therefore, the part of the lawsuit of this case concerning the revocation of the disposition imposing capital gains tax for the year 2007 and the part concerning the revocation of the disposition imposing capital gains tax for the year 2007 and the part concerning the revocation of the disposition imposing capital gains tax for the year 2010 are unlawful and dismissed, respectively, and