심판원 재조사 결정에 따라 원처분을 유지하기로 한 경우 재결의 기속력에 반한다고 볼 수 없음[국승]
Gwangju District Court 2009Guu2771 (2010.04.01)
early 2008 Mine0684 (Law No. 24, 2009)
If the review decision by the Tribunal is to maintain the original disposition in accordance with the review decision, it cannot be deemed as contrary to the binding force of the ruling.
In accordance with the review decision made by the Tribunal, the transfer income tax equivalent to the amount of the original disposition shall not be deemed to be contrary to the binding force of the ruling by imposing the transfer income tax on the same amount as the original disposition by re-disposition after the investigation
The contents of the decision shall be the same as attached.
Ma-○
Head of the North Mine District Tax Office
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The defendant's disposition of imposition of KRW 334,314,154, and additional tax of KRW 73,248,231 for failure to report and pay for the plaintiff on May 8, 2009 shall be revoked.
The key issue of this case is ① Whether the re-disposition of this case is against the binding force of the ruling of this case, ② whether the land of this case is a land having considerable grounds for recognizing that it is directly related to the business under Article 168-11 (1) 2, 7, 9, and 14 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21934, Dec. 31, 2009) or whether it is a land which is not deemed a non-business land due to any inevitable reason under Article 168-14 (1) 1 and 4 of the Enforcement Decree of the same Act.
As to the issue ①, the first instance court determined that, in light of the following circumstances: “The Tax Tribunal conducted a re-disposition on April 24, 2009 to re-disposition the same amount of capital gains tax as the original disposition of this case and to revise the tax base and tax amount according to the results of re-assessment, not to cancel the decision of this case on the ground that the land of this case was illegal as the land for non-business use; and the Defendant determined that the land of this case was land for non-business use as a result of re-assessment according to the purport of the ruling of this case, it cannot be deemed that the Defendant imposed capital gains tax equivalent to the original disposition of this case by imposing capital gains tax on the same amount as the original disposition of this case, and thus contravenes the binding force of the ruling of this case.
② The key issue is: (a) it cannot be deemed that the land of this case was used as a parking lot under the provisions of subparagraph 2 of Article 168-11(1)2 of the former Enforcement Decree of the Income Tax Act until it was transferred on July 5, 2006; (b) it cannot be deemed that the land of this case was used as a storage lot under Article 168-1(1)7 of the former Enforcement Decree of the Income Tax Act; (c) it cannot be deemed that the land of this case was used as a storage lot under Article 168-11(1)7 of the former Enforcement Decree of the Income Tax Act; and (d) it cannot be deemed that the land of this case was used as a prohibited land under Article 168-1(1)9 of the former Enforcement Decree of the Income Tax Act after it was acquired on the ground that there is insufficient evidence to acknowledge that the land of this case was used as a prohibited land under subparagraph 14 of Article 168-14 of the former Enforcement Decree of the Income Tax Act; and (d) it cannot be deemed that the land of this case was not used after the land.
Even if this Court considers the allegations and reasons supplemented by the plaintiff in the trial, such determination by the first instance court is justifiable.
Therefore, the reasoning of the judgment of this court is the same as that of the judgment of the court of first instance, and therefore, it is accepted by Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
Therefore, the judgment of the court of first instance that rejected the plaintiff's claim is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.