[특별부가세부과처분취소][공2001.4.15.(128),801]
In case where the amount of special surtax on the transfer of land, etc. of a non-profit domestic corporation is calculated by the method of calculating the amount of transfer income tax under the Income Tax Act pursuant to the special exception under Article 59-6 of the former Corporate Tax Act, whether the comprehensive limit of reduction or exemption is not the comprehensive limit of transfer income tax reduction or exemption
The provisions of the former Corporate Tax Act [amended by Act No. 4804, Dec. 22, 1994; Act No. 4804, Dec. 22, 1994; Act No. 4803, Jan. 1, 1996; Act No. 4806, Dec. 22, 1994; Act No. 19655, Dec. 1, 1994; Act No. 19655, Dec. 3, 1994; Act No. 19655, Dec. 22, 1994; Act No. 19655, Nov. 16, 1994; Act No. 19455, Dec. 16, 1994; Act No. 19455, Dec. 16, 209>
Articles 57(1) (see current Article 77(1)), 88-2 (see current Article 133 of the Restriction of Special Taxation Act), 88-3 (see current Article 134 of the Restriction of Special Taxation Act) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4803, Dec. 22, 1994); Article 13 of the former Corporate Tax Act (amended by Act No. 4803, Dec. 22, 1994; see current Article 103); Article 59-6 (see current Article 103); Article 15(1) of the former Act (amended by Act No. 4803, Dec. 22, 1994; see current Article 15(3)); Article 140 of the Framework Act on National Taxes (see current Article 4803, Dec. 22, 199)
Supreme Court Decision 86Nu92 delivered on May 26, 1987 (Gong1987, 1079) Supreme Court Decision 90Nu9797 delivered on July 9, 1991 (Gong1991, 2175), Supreme Court Decision 92Nu18603 Delivered on February 22, 1994 (Gong194, 1123), Supreme Court Decision 95Nu7857 delivered on September 26, 1995 (Gong195Ha, 3554)
Mapyeong-Jap Jae-ho (Attorney Kim Tae-won, Counsel for the plaintiff-appellant)
Head of North Busan District Tax Office
Busan High Court Decision 98Nu1055 delivered on August 14, 1998
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal (the grounds of further appeal submitted after the expiry of the period are to the extent of supplement) are examined.
Article 59-6 (1) of the former Corporate Tax Act (amended by Act No. 4804, Dec. 2, 1994; Act No. 4803, Jan. 1, 1996; hereinafter the same shall apply) provides that where a non-profit domestic corporation has any income accruing from the transfer of real estate, etc., it may choose not to file a return of tax base notwithstanding Article 26 (1). In this case, the income for which no return of tax base is filed shall be included in the calculation of the income amount for each business year under Article 9; paragraph (2) provides that the total amount of tax reduction and exemption for transfer income, such as real estate for which no return of tax base is filed under paragraph (1), exceeds the amount of tax reduction and exemption under Article 59-2 and 59-4 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same shall apply) which is applicable to each tax base calculated by applying the provisions of Article 166 of the former Act.
The corporate tax on the income of a domestic corporation for each business year and the special surtax shall be reported and paid with respect to the income accruing from the transfer of real estate of a non-profit domestic corporation. However, the special case of Article 59-6 (2) of the former Corporate Tax Act is limited to allowing only the amount calculated under Articles 15 and 70 (3) of the former Income Tax Act to be reported and paid as special surtax pursuant to Article 59-6 (2) of the former Corporate Tax Act. The special case of Article 59-6 (2) of the former Corporate Tax Act is limited to allowing the amount of special surtax to be calculated in accordance with the calculation method of the transfer income tax under the former Income Tax Act. On the other hand, the interpretation of tax laws and regulations shall be strict, and the interpretation of tax laws and regulations shall not be allowed (see, e.g., Supreme Court Decisions 86Nu92, May 26, 198; 90Nu9797, Jul. 9, 199).
The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the provisions of Article 59-6 of the former Corporate Tax Act, and Articles 88-2 and 88-3 of the former Act.
Other grounds of appeal are justified, since the court below did not examine the legitimate amount of special rural development tax, which is the additional tax of the special rural development tax of this case, and the special rural development tax of this case is not subject to the adjudication of the lawsuit of this case, and the above argument is without merit.
All of the grounds of appeal cannot be accepted.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Jae-sik (Presiding Justice)