[토지초과이득세부과처분취소][집44(2)특,651;공1996.10.15.(20),3060]
[1] In a case where the amount of tax is deducted and refunded due to a regular taxation disposition during a lawsuit seeking revocation of a scheduled taxation disposition, whether there is a legal interest in maintaining the claim for revocation of the scheduled taxation disposition (affirmative)
[2] The meaning of "the time of delivery of the object" which is the starting point of the installment period for determining whether the transaction falls under the condition of deferred payment under Article 108 (2) of the former Enforcement Decree of the Income Tax Act
[3] The case holding that where an agreement is made to allow the use of land even before the registration of ownership transfer to the purchaser of land in installments, the starting point of the installment period for the determination of whether the land was sold on condition of annual
[4] In a case where only one day of the scheduled period of land excess profit tax is subject to taxation, whether the amount of tax to be paid should be calculated (negative)
[1] Where the amount of tax is refunded pursuant to Article 24 of the Land Excess Profit Tax Act, some additional dues, interest, expenses for disposition on default, etc. shall be excluded from the amount to be refunded. However, where a scheduled taxation disposition is cancelled due to its own illegal cause, the amount of additional dues, interest, and expenses for disposition on default, etc. may be refunded as an erroneous payment, in principle, from the date following the payment date to the date of additional payment, and all of the amounts possessed by the State, such as interest and expenses for disposition on default, which are added to the amount of tax payable in installments, can be refunded as an erroneous payment. Thus, even in cases where the amount of tax based on the scheduled taxation disposition has already been deducted or refunded under Article 24 of the Land Excess Profit Tax Act while a taxpayer becomes subject to the scheduled taxation disposition during the litigation of the scheduled taxation disposition, it is necessary to maintain the previous claim seeking the cancellation of the scheduled taxation disposition regardless of the scheduled taxation disposition on other than the amount of tax payable.
[2] In determining whether a transaction constitutes a transaction subject to deferred payment under Article 51 (6) of the former Income Tax Act (amended by Act No. 4661 of Dec. 31, 1993) and Article 108 (2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14083 of Dec. 31, 1993), the time of delivery of the object which is the starting point of the period of installment (the period from the day after the delivery of the object in question to the day of the last installment payment is more than 2 years), the date of delivery of the object in question, as well as the date of delivery, as stipulated by a special agreement on delivery or use and profit-making
[3] The case which calculated the installment period from the contract date regardless of whether the land was actually delivered or not, if the seller agreed to pay in installments the remainder of the price other than the down payment over 10 times every several years, but to allow the buyer to use the land even before the registration of transfer of ownership in the event that the seller provides a certain security required, on the grounds that the use of the land can be permitted in advance from the contract date to the buyer
[4] In a case where the land excess profit tax is excluded from idle land, etc. subject to taxation until December 30 of the year concerned during the period of determination of the scheduled land excess profit tax, and only one day is subject to taxation on December 31 of the year concerned, the land excess profit tax per day shall not be calculated.
[1] Article 226 of the Civil Procedure Act, Article 52 subparagraph 1 of the former Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993), Articles 16, 23, and 24 of the Land Excess Gains Tax Act, Article 40 of the Enforcement Decree of the Land Excess Gains Tax Act / [2] Article 51 (6) of the former Income Tax Act (amended by Act No. 4661 of Dec. 31, 1993), Article 108 (2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14083 of Dec. 31, 1993), Article 25 (1) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994), Article 139 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1469 of Dec. 136 of Dec. 14, 19994)
[1] Supreme Court Decision 86Nu619 delivered on September 2, 1987 (Gong1987, 1652), Supreme Court Decision 94Da49816 delivered on March 14, 1995 (Gong1995Sang, 1604) / [2] Supreme Court Decision 94Nu6598 delivered on April 28, 1995 / [4] Supreme Court Decision 93Nu23107 delivered on July 29, 1994
Hyundai Industrial Development Co., Ltd. (Attorneys Hy Chang-soo et al., Counsel for the plaintiff-appellant)
Head of the tax office
Seoul High Court Decision 92Gu29131 delivered on October 7, 1994
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined as follows.
1. On the first ground for appeal
Article 51 (1) of the Framework Act on National Taxes (amended by Act No. 4672 of Dec. 31, 1993; hereinafter the same shall apply) provides that where a taxpayer has overpaid or erroneously paid the amount of national tax, surcharges, or expenses for disposition on default, or where taxes to be refunded under the tax-related Acts exist, such overpaid or erroneously paid amount or refundable amount shall be immediately determined as a national tax refund. Article 52 subparagraph 1 of the same Act provides that national tax refund due to cancellation of imposition after payment shall, in principle, be from the date following the date of payment, and subparagraph 2 of the same Article provides that in cases of a national tax refund due to a periodic determination under tax-related Acts, the amount of money calculated at an interest rate for the period from the date following the date of determination of appropriation of the national tax refund or the date of determination of payment of the above national tax refund. Article 24 of the Land Excess Tax Act (hereinafter referred to as the "Land Tax Act") provides that the tax amount to be refunded exceeds the scheduled tax amount to be refunded, regardless of the scheduled tax amount of the aforementioned provisions.
2. On the second ground for appeal
Article 51(6) of the former Income Tax Act (amended by Act No. 4661 of Dec. 31, 1993; hereinafter the same shall apply) and Article 108(2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14083 of Dec. 31, 1993; hereinafter the same shall apply) determine whether the land constitutes a condition precedent for annual payment under Article 51(6) of the former Income Tax Act (amended by Presidential Decree No. 14083 of Dec. 31, 1993), the starting date of delivery of the object, which is the starting date of the installment period (the starting date of delivery of the object in question, is two or more years from the date of delivery), shall be deemed to include the date of delivery as well as the date of delivery as stipulated by a special agreement on delivery or use of the object in the sales contract, and if the Plaintiff actually purchased the land from Nonparty 1 Korea Land Development Corporation (hereinafter the same shall apply) to the Plaintiff from October 19, 19, regardless of its final payment date.
Unlike this, the court below held that the above sales contract does not constitute a conditional sale on the ground that the plaintiff cannot be deemed to have received delivery of the land of this case from the non-party construction based on the above sales contract, and further, the acquisition date of the land of this case, which constitutes the criteria for determining idle land, etc., shall be July 11, 1990, which is the date of settling the balance under the general principles of income tax law, is erroneous in the misapprehension of legal principles as to the principle of deferred sale and the criteria for determining idle
However, as legally determined by the court below, the plaintiff acquired the land in this case, which was located for the purpose of constructing a new building, and it is clear that the acquisition date was before December 31, 1989, which was before the enforcement date of the Land Tax Act, as the first payment date of October 10, 1986, and it was before December 31, 1989. Thus, under paragraph (4) of the Addenda of the Enforcement Decree of the Land Tax Act (amended by Presidential Decree No. 13198 of December 31, 1990), the land in this case was excluded from idle land, etc. before the acquisition date of December 30, 1990, and the decision of the court below that the above disposition of this case was just and justified as it did not err in the misapprehension of legal principles as alleged in the ground for appeal.
3. 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 Jae-soo (Presiding Justice)