early 208west3243 ( December 31, 2008)

Whether the previous regulations on the distance of passage are invalidated or not;

In the case of the Specialized Amendment on December 31, 1998, since there was no transitional provision regarding the distance provision in the Addenda to the Specialized Amendment on December 31, 1998, the previous distance provision should be deemed null and void.

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

Article 69 (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

1. The plaintiff's claim is dismissed.

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

In February 13, 2008, the Defendant revoked the disposition rejecting the correction of transfer income tax to the Plaintiff.

1. Circumstances of the disposition;

가. 1977. 12. 21. 원고의 남편이던 소외 고★★은 하남시 ☆☆동 135-6, 1135-7, 136, 137-4, 137-5 전과 답 3540㎡(이하 '이 사건 토지')을 취득하였다. 1994. 1. 28. 고★★이 사망함에 따라 원고는 이 사건 토지 중 3/7 지분(이하 '이 사건 지분')을 상속 하여 보유하다가 2007. 6. 5. 다른 공유자들과 함께 이 사건 토지를 양도하였다.

B. The Plaintiff reported and paid KRW 66,917,608, which was calculated by making a preliminary return of transfer income tax on shares in the latter case, based on the actual transaction value of KRW 550,285,720, and acquisition value of KRW 199,668,510, which was converted value.

C. On October 11, 2007, the Defendant notified the acquisition value of the instant shares by additionally revising KRW 27,128,33 of the capital gains tax calculated by applying the acquisition value of the instant shares to KRW 92,016,26, the standard market price.

D. On December 26, 2007, the Plaintiff filed a claim for correction of KRW 92,712,833 of the transfer income tax by asserting that the provision on reduction and exemption of income tax applies to the land of this case falling under one’s own farmland for not less than eight years.

마. 피고는 2008. 2. 13. 원고와 피상속인인 고★★이 이 사건 토지의 소재지 또는 연접 행정구역에 거주한 기간이 2년 8개월에 불과하여 양도소득세 감면규정이 적용되지 않다는 이유로 경정을 거부하였다(이하 '이 사건 처분').

[Ground of recognition] Facts without dispute, entry in Eul-1 through 8 (including the serial number) and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) 구 조세감면규제법시행령(1998. 12. 28. 법률 제5584호로 조세특례제한법으로 전문 개정되기 전의 것) 제54조 제2항 제3호는, 농지로부터 20km 이내에 있는 지역에서 8년 이상 거주하면서 경작한 거주자에 대하여는 농지의 양도소득세를 면제한다고 규정하고 있었다. 위 조세감면규제법시행령이 1995. 12. 30. 대통령령 제14869호로 개정되면서 개정 전의 제54조 제2항 제3호의 규정을 삭제하였으나 부칙 제10조 제3항에 서 이 영 시행 당시 종전의 제54조 제2항의 규정에 해당하는 거주자가 개정규정에 의 한 요건에 해당하지 아니하게 되는 경우에는 개정규정에 불구하고 종전의 해당규정에 의한다 는 경과규정을 두었다. 원고와 피상속인 고★★은 1995. 12. 30. 전에 이 사건 토지로부터 20km 이내의 통작거리에 거주하면서 8년 이상 이 사건 토지를 경작하는 요건을 충족하였으므로 위 규정들에 따라 이 사건 토지(지분)의 양도로 인한 양도소득세를 면제하여야 한다. 따라서 이 사건 처분은 위법하다.

(2) Article 69(1)1 of the Restriction of Special Taxation Act as amended by Act No. 5584 of Dec. 28, 1998 and Article 66(4) of the Enforcement Decree of the Restriction of Special Taxation Act (amended by Presidential Decree No. 15976 of Dec. 31, 1998), which were amended by Presidential Decree No. 15976 of Dec. 31, 1998, are the exemption provisions of the former Regulation of Tax Reduction and Exemption Act before the amendment, but there was no transitional provision regarding the distance provision in the Addenda. The above provision is unconstitutional, which infringes on the right to equality and the freedom to move to residence under the Constitution.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As the first note:

(A) Article 5(1)1 of the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act (amended by Act No. 5584, Dec. 28, 1998; hereinafter "the former Enforcement Decree of the Restriction of Special Taxation Act") provides that "resident who resides in a location of farmland for not less than eight consecutive years as prescribed by the Presidential Decree" shall be exempted from transfer income tax on land which is subject to imposition of farmland tax, and Article 54(2)3 of the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act (amended by Presidential Decree No. 14869, Dec. 30, 1995; hereinafter "the former Enforcement Decree of the Restriction of Special Taxation Act") provides that "the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act (amended by Presidential Decree No. 14869, Dec. 30, 1995; hereinafter "the former Enforcement Decree of the Restriction of Special Taxation Act") shall not be subject to reduction and exemption by Article 23(2)2 of the former Enforcement Decree of the Restriction of Tax Reduction and Exemption Act No. 19.

As can be seen, the amendment of the former Act is the same as the repeal of the existing Act and the enactment of a new Act. Thus, the previous provisions of the Addenda as well as the previous provisions of the former Act are deemed to be null and void, barring any special circumstance (see Supreme Court Decision 2001Du1168, Jul. 26, 2002). In a case where a tax statute was amended disadvantageous to a taxpayer, there is a case where the former provisions favorable to a taxpayer for the purpose of protecting the taxpayer’s vested rights or trust based on the transitional provisions such as Article 9(2) of the Addenda of the Restriction of Special Taxation Act, even if the former provisions, which were effective at the time of the act of cause before the establishment of the tax liability, are met based on the act of cause, and thus, the former provisions of the former Act shall be deemed null and void (see, e.g., Supreme Court Decision 2001Du1168, Jul. 26, 2002). 197.

(B) As long as the instant land was transferred on June 5, 2007 in this case, the previous provisions on the passage distance do not apply, so the instant land does not constitute farmland exempt from capital gains tax. Therefore, the Plaintiff’s above assertion is without merit.

(2) As the second note:

The provision of the taxation requirement and the exceptional provision of non-taxation or tax exemption requirement in the tax law belongs to the legislative discretion of the legislator unless the provision is clearly unreasonable (see, e.g., Supreme Court Decision 9Du7265, May 29, 2001). Article 54(2) of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act or Article 66(4) of the Enforcement Decree of the Restriction of Special Taxation Act amended on December 30, 1995, which was amended on December 30, 1995, provides for the "resident living in the seat of the seat" according to the delegation of the Act, and it cannot be deemed that the Enforcement Decree of the Restriction of Special Taxation Act infringes on the right to equality under the Constitution or infringes on the freedom of transfer of residence, even if the former provision was deleted and the administrative district alone decided whether he is residing in the seat of the seat. Therefore, the plaintiff's above

3. Conclusion

The plaintiff's claim is dismissed.