B. In a case where a taxpayer is deemed to have been exempted from capital gains tax by applying for exemption from capital gains tax under the former Regulation of Tax Reduction and Exemption Act, whether the tax authority imposed capital gains tax again on the ground that the taxpayer did not file a final return on the profit accruing from the transfer of assets or the final return on the transfer of assets in addition to applying for exemption from capital gains tax under the former Income Tax Act (amended by

B. In a case where a taxpayer is deemed to have been exempted from capital gains tax due to an application for exemption of capital gains tax under Article 42(2) and (4) of the former Regulation of Tax Reduction and Exemption Act, and Article 36(3) of the Enforcement Decree of the same Act, the taxation authority’s re-assessment of capital gains tax on the grounds that the taxpayer did not receive a return on the profits accruing from transfer or the final return on the final return in addition to the application for exemption under Articles 6(2) and (4) and 106 of the former Income Tax Act (amended by Act No. 3793, Dec. 23

The costs of appeal are assessed against the defendant.

In full view of the provisions of Article 42(2) and (4) of the Regulation of Tax Reduction and Exemption Act and Article 36(3) of the Enforcement Decree of the same Act, where the transferor intends to be exempted from capital gains tax under Article 42(2) of the Regulation of Tax Reduction and Exemption Act, he shall submit a tax base return for the taxable year in which the date of factory transfer falls (in the case of a resident, including the marginal profit accruing from the transfer of a factory), and where the transferor has already imposed capital gains tax, etc. on the taxpayer before the expiration of the tax base return period, if the taxpayer submits only the amount of capital gains tax exemption under Article 42(4) of the Regulation of Tax Reduction and Exemption Act without such tax base return to the taxpayer, he shall be exempted from capital gains tax if the taxpayer meets the actual requirements of capital gains tax exemption under Article 42(2) of the Regulation of Tax Reduction and Exemption Act, and thus, the provisions of capital gains tax reduction and exemption under Article 6(2) of the Income Tax Act differ from those of Article 42(2) of the Regulation of Tax Reduction and Exemption Act.

According to the above opinion of the court below, even if the plaintiff submitted only the amount of transfer income tax pursuant to the provisions of Article 42 (4) of the Regulation of Tax Reduction and Exemption Act without filing a final return on the tax base of the transfer income tax on the land transfer for the relocation of the factory of this case, the defendant has already notified the plaintiff of the decision of transfer income tax prior to the expiration of the above final return period, and the plaintiff's transfer of the factory of this case meets the substance requirements for the exemption of transfer income tax under Article 42 (2) 2 of the Regulation of Tax Reduction and Exemption Act. Thus, in this case where it is recognized that the transfer income tax is exempted by the plaintiff's exemption of transfer income tax under Article 42 (2) 2 of the Regulation of Tax Reduction and Exemption Act, the defendant's re-assessment of the transfer income tax of this case from the plaintiff on the ground that the plaintiff did not receive the expected return on the transfer income tax or the final return on the tax base, the decision of the court below is justified and there is no error of law

There is no reason to discuss this issue.

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 Choi Jae-ho (Presiding Justice)