양도한 부동산에 대한 그 양도차익 등 그 소득금액을 법인세 과세표준과 세액신고를 하면서 과세표준에서 누락하였으나 그 산출세액이 없는 경우로서 법인세를 부과한 처분의 당부[국승]
Where the amount of income, such as gains on transfer, is omitted from the tax base while reporting the tax base and amount of corporate tax on the transferred real estate, the disposition imposing the corporate tax is legitimate.
Inasmuch as the relevant law only deducts non-taxable income from the tax base, and does not deduct the exemption income, the exemption income, unlike the non-taxable income, deducts the tax amount calculated on the tax base according to the reduction or exemption rate under the law after calculating the tax amount pursuant to the law and regulations, the income accrued from the transfer of the above real estate, not the non-taxable income, and since the exemption income is included in the tax base unlike the non-taxable income, the disposition by
The contents of the decision shall be the same as attached.
The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.
1. Basic facts
원고가 채권변제충당을 위한 근저당권의 실행으로 취득한 ㅇㅇ ㅇㅇ구 ㅇㅇ동 5가 16의7 소재 ㅇㅇ쇼핑내 52개 점포를 1989. 11. 8. 양도하고 1991. 2. 12. 잔금을 수령함으로써 그로 인하여 금405,490,504원의 양도차익이 발생한 사실, 위 양도차익에 대한 법인세는 조세감면규제법 제46조의4에 의하여 전액 면제대상인 사실, 원고가 1991 사업년도의 법인세 과세표준과 세액신고를 함에 있어서 위 점포의 양도로 인한 양도차익을 과세표준에서 누락시켰던 사실 및 이에 피고(부과당시는 ㅇㅇ세무서장이었으나 그후 피고로 관할이 변경되었다)가 1993. 6. 1. 법인세법 제59조의5, 제41조 제1항에 의하여 원고에게 법인세 금20,274,520원의 부과처분(이하 이 사건 부과처분이라 한다)을 한 사실은 당사자 사이에 다툼이 없다.
2. The plaintiff's assertion
Article 41 (1) of the Corporate Tax Act provides that when a domestic corporation collects corporate tax on income in each business year under the provisions of Article 38, if the domestic corporation falls under any of the following subparagraphs, the Government shall collect the amount calculated by adding the amount specified in the corresponding subparagraph to corporate tax: Provided, That in a case falling under subparagraph 2, it shall not apply if there is no calculated tax amount, and in a case falling short of the tax base to be reported under subparagraph 2, it shall be the amount equivalent to 10/100 of the calculated tax amount: Provided, That in a case falling short of the tax base to be reported under subparagraph 2, it shall be the amount equivalent to 20/100 of the calculated tax amount to be reported: Provided, That the above provision shall be interpreted as imposing corporate tax on the omitted income even though a corporation reports it short of the tax base, it shall be interpreted as imposing corporate tax only if there is the calculated tax amount on the income resulting from the transfer of the store omitted by the plaintiff, and thus, it shall be deemed as violating the Corporate Tax Act Article 41 (1) of the Corporate Tax Act.
3. Judgment of party members
Article 41(1)2 of the Corporate Tax Act provides that if the amount of corporate tax is returned below the tax base that should be returned under Article 26 of the same Act, Article 26(4) of the same Act shall also apply to a corporation which has no income, and Article 113-2 of the Enforcement Decree of the Corporate Tax Act provides that if the amount that is not the tax base reported is included in the application of Article 41(1)2 of the Act, the amount that should be returned under the Corporate Tax Act shall be the tax base. In addition, Article 11 of the Enforcement Decree of the Corporate Tax Act provides that if the income subject to corporate tax is exempted under the Corporate Tax Act and other Acts and subordinate statutes, it shall be exempted from the amount calculated by multiplying the corporate tax amount for the pertinent business year by the ratio of the non-taxable income to the tax base for the pertinent business year. Article 58(3) of the Enforcement Rule of the Corporate Tax Act provides that the non-taxable income subject to tax exemption and the non-taxable income subject to tax exemption and non-taxable income under Article 418(3) shall be excluded from the said tax base.
4. Conclusion
Therefore, the plaintiff's claim of this case is without merit, and it is dismissed, and the costs of lawsuit are assessed against the losing plaintiff and it is so decided as per Disposition.
September 8, 1994