[양도소득세등부과처분취소][공1989.11.1.(859),1497]
In the event that the tax authority did not determine and notify the transfer margin and the amount of tax for a person who has not made a return on the profits accruing from the transfer, the assessment of transfer margin and the imposition of the tax shall be made based on
According to the purport of Article 99, Article 94 of the Income Tax Act, Articles 146 and 142 (3) of the Enforcement Decree of the same Act, the tax authority shall immediately determine the transfer margin and the amount of tax on the transfer of assets which have not been reported on the marginal profit accruing from the transfer of assets and notify the transferor. However, even if the tax authority did not make such notification, the transferor may obtain the calculation of the transfer margin based on the actual transaction price by filing a final return on the tax base with the tax authority along with evidential documents verifying the actual transaction price at the latest until the expiration of the tax base period. According to Article 101 (1) 7-2 of the same Act, the taxpayer who did not make a preliminary return on the marginal profit from the transfer of assets is not exempted from the obligation to make the final return, and even if there is no return on the marginal profit from the transfer or the final return on the transfer, if there is no evidentiary documents, the tax authority may impose the additional return and the additional payment on the taxpayer who did not make the final return and the voluntary payment.
Articles 23(4), 45(1)1, 99, 94, 101(1)7-2, and 121 of the Income Tax Act, Articles 146 and 142(3) of the Enforcement Decree of the same Act
[Judgment of the court below]
Daejeon Head of the tax office
Seoul High Court Decision 87Gu959 delivered on October 13, 1988
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
1. We examine the grounds of appeal Nos. 1 and 3.
According to the purport of Article 99, Article 94 of the Income Tax Act, Article 146, Article 142 (3) of the Enforcement Decree of the same Act, the tax authority immediately determines the transfer margin and the amount of tax on the transfer of assets which have not been reported to the transferor, and notifies the transferor. However, even if there was no such notification by the taxation authority, the transferor may obtain the calculation of the transfer margin based on the actual transaction price by filing the final return with the tax authority along with evidential documents verifying the actual transaction price at the latest prior to the expiration of the period for the final return. According to Article 101 (1) 7-2 of the same Act, the person who is exempted from the obligation to make the final return is limited to a resident with only the transfer income and who has not made the final return on the transfer margin, and thus, the tax authority cannot calculate the transfer margin under the standard market price, and if there is no return on the transfer margin or the final return on the transfer, or even if there is no evidential document, the taxpayer cannot make a report on the actual return and the final return on the transfer.
According to the facts duly confirmed by the court below, since the plaintiff did not make a final return on the profits accruing from the transfer or the final return on the profits accruing from the transfer of the real estate as shown in its reasoning, even though the defendant did not make a prior notification of the theory, it is justified that the defendant calculated the gains accruing from the transfer according to the standard market price (tax rate standard under the Local Tax Act) and calculated the transfer income tax and the defense tax amount, and added the amount of the tax return and the additional tax
The court below rejected the plaintiff's assertion on the ground that the imposition of transfer income tax as well as profit margin and tax amount in imposing business income tax on the real estate sales businessman should be determined and notified to the relevant real estate sales businessman. Thus, the court below rejected the plaintiff's assertion on the ground that the imposition of transfer income tax as to the case of this case is a legal provision not applicable. However, the court below's determination is just in the conclusion that the defendant maintained the tax disposition of this case, and therefore it is not reasonable in this regard.
2. We examine the second ground for appeal.
The issue is that "acquisition value" in order to calculate the special deduction amount of capital gains under Article 23 (2) 1 of the Income Tax Act and Article 17 (1) of the Enforcement Rule of the same Act should be the sum of the standard market value of the transferred asset at the time of its acquisition of the transferred asset, the acquisition tax, the registration tax, and the same defense tax under the Local Tax Act. However, this is a new argument that is not asserted by the fact-finding court (The plaintiff asserted the above as a preparatory document from February 9, 1989 at the court below, but then withdrawn it on the 11st day for pleading thereafter).
3. Therefore, the appeal is dismissed as without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Jong-ju (Presiding Justice)