(영문) 서울고법 1984. 12. 13. 선고 84구323 제3특별부판결 : 상고[방위세부과처분취소청구사건][하집1984(4),652]
In the case of exemption from income tax, whether a tax credit under Article 98 (1) of the Income Tax Act can be obtained in calculating the tax base of defense tax (negative)
Since Article 98 (1) of the Income Tax Act stipulates that a person shall make a voluntary payment along with the return in order to receive the tax credit for the marginal profit accruing from the voluntary payment of the transfer income tax under Article 98 (1) of the Income Tax Act, if it is impossible to make a voluntary payment due to the full exemption of the transfer income tax
Article 98 (1) of the Income Tax Act, Article 4 (1) 1 and 2 of the Defense Tax Act
Plaintiff
Head of Sungbuk Tax Office
The plaintiff's claim is dismissed.
Litigation costs shall be borne by the plaintiff.
The part that exceeds KRW 1,382,256 of the imposition of the defense tax of KRW 2,083,987 against the plaintiff on September 20, 1983 is revoked.
The judgment that the lawsuit costs shall be borne by the defendant
1. On June 21, 1983, the Plaintiff transferred 8,39,565 won to Sungnam-si 63-2 and 3,027 Do Do Do 3,027 Do Do Do Do Do 3,027. On July 25, 1983, the Plaintiff made a preliminary return on gains from the transfer of assets pursuant to Article 95(1) of the Income Tax Act, and the transfer income tax on July 25, 200 was paid by voluntary payment of the defense tax amounting to KRW 6,315,578 by being exempted from the total amount because the said transfer falls under a case where the said transfer was transferred to a local government for a public project under Article 57(1)1 of the Regulation of Tax Reduction and Exemption Act. Accordingly, the Defendant calculated the defense tax following the transfer of the land of this case as indicated in the attached Table, and imposed additional tax imposition and collection of KRW 2,083,9
2. The plaintiff asserts that in calculating the defense tax of this case, since the transfer of this case's land falls under Article 57 (1) 1 of the Regulation of Tax Reduction and Exemption Act and the transfer income tax is exempted in full after the transfer of this case's land, in calculating the defense tax of this case without paying the transfer income tax, it is naturally possible to receive the tax credit for the transfer income tax of this case under Article 98 (1) of the Income Tax Act, and it is unlawful to impose the defense tax of this case on the transfer income amount as the tax base of the transfer income tax under Article 98 (1) of the Income Tax Act from the transfer income tax amount stated in the attached Table (h) of the Income Tax Act.
On the other hand, according to Article 98 (1) of the Income Tax Act, when voluntary payment is made along with the marginal profit accruing from the transfer of assets, the amount equivalent to 10/100 of the calculated tax amount shall be deducted from the calculated tax amount. Meanwhile, according to Article 4 (1) 2 of the Defense Tax Act, the tax base of the defense tax in the case of this tax shall be the income tax which has been granted the tax credit under Article 7 (1) of the Regulation of Tax Reduction and Exemption Act from the calculated income tax under the Income Tax Act. Accordingly, the tax base of the defense tax in the case of receiving the voluntary tax credit for the marginal profit accruing from the transfer of assets under Article 98 (1) of the Income Tax Act shall be the income tax amount which has been granted the said tax credit from the original transfer income tax amount calculated pursuant to the provisions of the Income Tax Act. However, as seen earlier, in order to receive the tax credit for the voluntary payment on the return of assets under Article 98 (1) of the Income Tax Act, if the income tax cannot be paid by voluntary payment, as in this case shall not be applied.
In addition, Article 4 (2) of the Defense Tax Act provides that the tax base of income tax or corporate tax shall be calculated for the taxpayer who has not imposed income tax or corporate tax under the provisions of the Regulation of Tax Reduction and Exemption Act or the Emergency Order on Economic Stabilization and Growth, or who has been exempted or deducted from income tax or corporate tax shall be deemed to have been added to the portion on which income tax or corporate tax is not imposed, and the tax base of Article 4 (1) 2 and 3 (Article 4 (1) 2 and 3 (Article 4 (2) of the same Act shall be calculated separately, and since subparagraph 3 (Article 4) of the same Act provides special provisions, the defendant shall be deemed to have imposed capital gains tax of 27,98,51 won as stated in the attached Table (h) calculated in accordance with the provisions of the Income Tax Act in imposing the defense tax of this case, and the taxation shall be imposed by making it the tax base.
3. Therefore, since the plaintiff's claim is improper, it is dismissed, and the costs of lawsuit are assessed against the losing plaintiff. It is so decided as per Disposition.
Judges Kim Jong-chul (Presiding Judge)