[수정신고거부통지처분취소][집34(3)특,363;공1986.12.15.(790),3143]
Where capital gains tax is exempted under the Regulation of Tax Reduction and Exemption Act, the tax base of the defense tax at the time of voluntary payment along with the marginal profits accruing from the transfer.
In full view of the provisions of Article 98 (1) of the Income Tax Act, Article 4 (1) 2, and Article 5 of the Defense Tax Act, even if the transfer income tax is fully exempted under the Regulation of Tax Reduction and Exemption Act, if the transfer income tax is calculated on the profit accruing from the transfer of the property and is paid voluntarily by the defense tax, the transfer income tax amount paid on the profit accruing from the transfer of the property tax shall be the tax base of the defense tax.
Article 98(1) of the Income Tax Act, Articles 4(1) and 5 of the Defense Tax Act
[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee
The director of the tax office.
Seoul High Court Decision 85Gu640 delivered on February 25, 1986
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
According to Article 98 (1) of the Income Tax Act, when a taxpayer pays a tax base of capital gains by voluntarily paying along with the marginal profits accruing from the transfer of assets, the amount equivalent to 10/100 of the calculated tax amount shall be provided from the calculated tax amount. According to Article 4 (1) 2 of the Defense Tax Act, the income tax amount which has been granted a tax credit under the same Act from the calculated amount of income tax under the Income Tax Act shall be the tax base of the defense tax. According to Article 5 (1) 2 of the same Act, a taxpayer of income tax under the Income Tax Act as provided by Article 5 (1) 2 of the same Act shall return and pay the tax amount when he files a return
In full view of the above provisions, even if the transfer income tax is exempted in full under the Regulation of Tax Reduction and Exemption Act, if the transfer income tax is paid on the expected return on the transfer income and the voluntary payment of the defense tax is made, the transfer income tax amount paid on the expected return on the transfer income under Article 98 of the Income Tax Act shall be considered as
Therefore, in the same purport, the court below did not err in the misapprehension of legal principles as asserted in the measure that held that it is improper to refuse the revised return of this case on the ground that the defendant cannot be granted tax credits under Article 98 of the Income Tax Act when determining the tax base of the defense tax of this case which corresponds to the case where the capital gains tax is exempted in full under the Regulation
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices.
Justices O Sung-sung (Presiding Justice)