[양도소득세부과처분취소][공1998.4.1.(55),931]
[1] Whether the service of a written notice of correction of a duty amount indicating only the corrected duty amount with the initial notice of duty amount and the deadline for payment is legitimate by the method of notification of the correction of reduction (affirmative)
[2] In the income tax belonging to a tax assessment method, whether it becomes effective to determine a tax liability only by making a final return on tax base based on the final return on tax base of the taxpayer (negative)
[1] Even though the tax authority stated only the amount of reduced tax due to deduction of voluntarily paid tax amount in notifying the decision of reduction of capital gains tax, unless the tax authority issued a tax payment notice stating necessary matters such as the basis for calculation of the amount of tax at the time of the initial taxation and issued a tax payment notice, it cannot be deemed that the tax administration’s fairness is harmed or the taxpayer’s disadvantage cannot be deemed unlawful on the ground that the tax authority did not re-written the notice of the decision of reduction, etc. in the notice of the decision of reduction of capital gains tax.
[2] In the case of income tax belonging to the method of imposition under Article 22(1) of the Framework Act on National Taxes and Article 10-2(3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14870 of Dec. 30, 1995), the tax obligation becomes final and conclusive only after the determination and notice of the amount of tax pursuant to the Income Tax Act is made, and even in the case of making a final decision on the tax base based on the final return on the tax base of the taxpayer, it cannot be deemed that there was a disposition of imposition identifying the tax obligation, unless such determination and notice are made, and that the tax authority internally confirmed and accepted
[1] Article 128 (see current Article 83) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994); Article 183 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467, Dec. 31, 1994); Article 9 (1) of the National Tax Collection Act; Article 6 of the Enforcement Rule of the National Tax Collection Act / [2] Article 22 (1) of the Framework Act on National Taxes; Article 10-2 subparagraph 3 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 14860, Dec. 30, 1995)
[1] Supreme Court Decision 88Nu2830 delivered on October 27, 1989 (Gong1989, 1815), Supreme Court Decision 96Nu19352 delivered on April 11, 1997 (Gong1997Sang, 1493), Supreme Court Decision 97Nu2917 delivered on September 12, 1997 (Gong1997Ha, 3184) / [2] Supreme Court Decision 87Nu642 delivered on April 13, 1990 (Gong190, 1086) (Gong190, 1179), Supreme Court Decision 87Nu276 delivered on April 27, 190 (Gong1990, 1179), Supreme Court Decision 87Nu159039 delivered on May 11, 1995)
Plaintiff
head of Dongjak-gu Tax Office
Seoul High Court Decision 97Gu548 delivered on October 16, 1997
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
The First Ground for Appeal
Article 128 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter referred to as the “Act”) and Article 183(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1467, Dec. 31, 1994; hereinafter referred to as the “Enforcement Decree”) provide that when the tax authorities have corrected the tax base and tax amount, the tax base, tax rate, and other necessary matters shall be stated in the notice of tax payment and shall be notified in writing. This provision is a mandatory provision, even if the tax authorities have determined the amount of income tax internally, if the tax authorities did not notify the above notice of the determination of the amount of income tax, the existence of the valid amount of reduction may not be recognized (see, e.g., Supreme Court Decisions 92Nu508, Dec. 22, 1992; 200Nu38, Mar. 198, 1998).
However, according to the records, the defendant determined capital gains tax amount of 58,680,980 won for the plaintiff in 191 and notified the plaintiff as of December 16, 1995, after serving a tax notice stating the tax base, tax rate, tax base, grounds for calculation, payment deadline, etc., and then finding late that the plaintiff did not deduct capital gains tax amount of 2,322,280 won paid by preliminary return for assets transfer marginal profits, and then notified the plaintiff of the revised notice of tax amount of 56,358,70 won as of January 25, 1996 at the original notice of correction of tax amount with the due date and due date for payment as of 5,00 won. Thus, even if the defendant notified the plaintiff of the revised notice of tax amount of 90,000 won, the defendant did not lawfully change the original notice of tax amount to the effect that the original notice of reduction of tax amount was invalid for 9,000 won or more, and thus, it cannot be viewed that the grounds for calculating the remaining tax payment notice was unlawful.
The Second Ground of Appeal
Article 22(1) of the Framework Act on National Taxes and Article 10-2(3) of the former Enforcement Decree of the same Act (amended by Presidential Decree No. 14870 of Dec. 30, 1995), income tax belonging to taxation method is determined only when the amount of tax is determined and notified as prescribed by the Income Tax Act, and even when a final return on the tax base of a taxpayer is made based on the final return on the tax base, it cannot be deemed that there was a tax disposition that establishes a tax obligation, unless such determination and notification are made, and that there is no confirmative disposition that the tax authority internally confirmed and accepted the final return on the tax base (see, e.g., Supreme Court Decisions 87Nu276, Apr. 27, 199; 87Nu642, Apr. 13, 199). In the same purport, the lower court did not err in the misapprehension of the Plaintiff’s assertion that the transfer of land newly made by the Defendant constitutes a double taxation and thus, it cannot be justified.
Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Yong-hun (Presiding Justice)