Cho High Court Decision 2008Na0506 ( November 28, 2008)

It does not correspond to farming children in indirect case of farming with the focus on agriculture in another occupation.

A farmer refers to a person who manages and cultivates under his/her own responsibility, and even if he/she concurrently engages in another occupation as long as he/she is directly engaged in farming, he/she shall be deemed a farmer. However, if he/she indirectly engages in agriculture while he/she transferred to another occupation, he/she shall not be deemed a farmer

The contents of the decision shall be the same as attached.

Article 58 (Exemption of Gift Tax on Gifted to Farming Children)

Article 57 (Exemption of Gift Tax on Gifted to Farming Children)

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing gift tax amounting to KRW 23,956,960 on July 10, 2007 is revoked.

300 44 44 44 44 44 44 44 44 44 44 44 4

A. On December 19, 2006, the Plaintiff (hereinafter “each of the instant lands”) donated 1,060 m2,734 m2,00 m2,734 m2,00,000 m2,000 m2,734 m2,000 m2,000 m2,000 m2,000 m2,934 m2,000 m2,934 m2, and 155-10 m2,060 m2,000 m2,000

B. On January 8, 2007, the Plaintiff made an application for tax reduction or exemption to the Defendant that each of the instant land constitutes farmland donated to farming children under Article 58(1)1(a) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5584, Dec. 28, 1998; hereinafter referred to as the "former Regulation of Tax Reduction and Exemption Act"), Article 57(1) and (2) of the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act (amended by Presidential Decree No. 15976, Dec. 31, 1998; hereinafter referred to as the "former Enforcement Decree of the Restriction of Special Taxation Act"), Article 15(2) of the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act (amended by Act No. 5825, Feb. 8, 199; hereinafter referred to as the "Special Taxation Act").

C. On July 10, 2007, the Defendant rendered a disposition imposing gift tax of KRW 23,956,960 on the Plaintiff (hereinafter referred to as “instant disposition”) by determining that each of the instant lands is not subject to reduction and exemption of gift tax under the above provisions.

D. On January 28, 2008, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s claim on November 28, 2008.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 5, 6, 8, 9, 13, and Eul evidence Nos. 1, 2, 3, 5, 6, 8, 9, 13, and the purport of the whole pleadings

2. The assertion and judgment

(a)the master of the plaintiff;

1) Whether each land of this case is eligible for exemption from gift tax under Article 15(2) of the Addenda of the Restriction of Special Taxation Act should be determined on the basis of the date of donation. The land of this case is eligible for exemption from gift tax under the former Regulation of Tax Reduction and Exemption Act, the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act, the Enforcement Decree of the Restriction of Special Taxation Act, and the Addenda of the Restriction of Special Taxation Act. Nevertheless, the Defendant’s imposition of gift tax on the Plaintiff is unlawful.

2) If the Plaintiff knew that each of the instant lands was not eligible for exemption from gift tax, the Plaintiff could return the instant land to the Si Do △△△△△△△ within three months from the date of donation pursuant to Articles 31(4) and 68 of the Gift Tax Act and did not pay gift tax. Therefore, if each of the instant lands was determined to be not eligible for exemption from gift tax, the Defendant notified the Plaintiff of such fact. Nevertheless, the Defendant did not at all notify the Plaintiff of such fact.

(b) Related statutes;

Article 58 (Exemption of Gift Tax on Gifted to Farming Children)

Article 57 (Exemption of Gift Tax on Gifted to Farming Children)

C. Determination

1) Article 15 (2) of the Addenda to the Restriction of Special Taxation Act provides that if a self-employed farmer donates farmland, etc. that is subject to exemption from the gift tax under Article 58 (1) of the previous Regulation of Tax Reduction and Exemption Act at the time this Act enters into force, which is the farmland, etc. that is subject to exemption from the gift tax, on or before December 31, 2006, the gift tax shall be exempted pursuant to Article 58 (2) through (5) of the previous Regulation of Tax Reduction and Exemption Act. Article 58 of the previous Regulation of Tax Reduction and Exemption Act provides that "the exemption from the gift tax on the farmland, etc. on which the farming child is donated" under the first sentence of paragraph (1) of the same Article provides that a farmer who is self-employed as prescribed by the Presidential Decree (hereafter referred to as "self-employed farmer" in this Article) who is engaged in farming (hereafter referred to as "farmland, etc." in this Article) shall be exempted from the gift tax on the value of such farmland, etc., and Article 57 (2) of the previous Regulation of Tax Reduction and Exemption and Exemption Act.

In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, and the interpretation of tax laws shall be interpreted in accordance with the text of the law, barring any special circumstance, and it shall not be extensively interpreted or analogically interpreted without any reasonable reason, and in particular, it is also consistent with the principle of fair taxation to strictly interpret the provisions that can be clearly viewed as preferential provisions among the requirements for tax exemption and exemption (see, e.g., Supreme Court Decision 97Nu20090, Mar. 27, 1998). In light of the above, Article 15(2) of the Addenda of the Restriction of Special Taxation Act provides that a self-employed farmer shall meet all the requirements prescribed by the former Regulation of Tax Reduction and Exemption Act and the Enforcement Decree of the Common Act at the time of January 1, 199, when the self-employed farmer satisfies all the requirements prescribed by the former Enforcement Decree of the Restriction of Special Taxation Act, and thus, it shall be interpreted that the land subject to exemption of gift tax is a provision that is exempt from gift tax under the above Restriction of Special Taxation Act.

However, comprehensively taking account of Gap evidence Nos. 4 and Eul evidence Nos. 2 and the purport of the whole pleadings, the plaintiff was residing in ○○○○ apartment, 472 ○○○○ apartment, 106, at the time of January 1, 1999, and worked in the ○○○○ Science Research Institute, and 26,853,443 won earned from January 1, 1997 to December 31, 1997, and 21,07 through September 1, 1999 to September 30, 1999. In light of the above facts, the plaintiff was not directly engaged in the farming business and/or Gu farming business and/or Gu farming business and/or Gu farming business and/or Gu farming business and/or Gu farming business and/or Gu. However, the plaintiff did not directly engage in the farming business and/or Gu farming business and/or Gu farming business and/or Gu farming business.

다른 직업에 전념하면서 농업을 간접적으로 경영하는 것에 불과한 경우에는 영농자녀 에 해당한다고 볼 수 없는바(대법원 1998. 9. 22. 선고 98두9271 판결 참조), 원고는 1997. 1. 1.부터 1997. 12. 31.까지의 기간 및 1999. 1. 1.부터 1999. 9. 30.까지의 기간 에는 재단법인 @@산업과학연구소에서 근무하면서 근로소득을 얻고 있었으므로, 위 @@산업과학연구소와 이 사건 각 토지와의 거리 등에 비추어 볼 때, 원고의 주장과 같이 원고가 위 기간 동안에도 틈틈이 이 사건 각 토지를 경작했다고 하더라도 이는 위 @@산업과학연구소의 직원으로서의 업무에 전념하면서 농업을 간접적으로 경영하는 것에 불과한 것이라고 판단되므로, 1999. 1. 1.을 기준으로 소급하여 2년 이상 계속 하여 직접 영농에 종사하고 있지 않았다고 봄이 타당하다.

Therefore, as of January 1, 199, the Plaintiff failed to meet the requirements of the former Regulation of Tax Reduction and Exemption Act and the Enforcement Decree of the same Act as farming children, each of the instant land does not constitute farmland subject to exemption of gift tax under each of the above provisions.

2) As alleged by the Plaintiff, the Plaintiff could not pay gift tax by returning each of the instant land to △△△△ within three months from the date of donation pursuant to Articles 31(4) and 68 of the Gift Tax Act. As such, the Defendant is not obligated to notify the Plaintiff of such circumstance. Accordingly, the Defendant’s non-notification does not affect the legality of the instant disposition.

3) Sub-decisions

Therefore, this case is legal.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.