[2] Whether Article 82 (1) and (2) of the former Income Tax Act is unconstitutional (negative)

[2] Article 82 (1) and (2) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) provides for the calculation method of the calculated global income tax amount on a real estate sales broker. This is based on the rationale that it is reasonable to treat income by continuing and repetitive acts for the purpose of earning income, among income from the transfer of real estate, etc., as income from the transfer of real estate, differs from the temporary and temporary capital gains, and thus, it is reasonable to divide it into taxation. The distinction is based on ordinary social norms, taking into account whether the transfer is for the purpose of earning income and whether the transfer is made for the purpose of business, and whether the transfer has continuity and repetition to the extent that it is possible to regard it as business activity. Thus, in determining whether it constitutes the business income from real estate sales business, the ex post facto factor is considered in calculating the calculated global income tax on the real estate sales broker. Furthermore, in calculating the calculated global income tax amount, the method of estimated taxation is either allowed or the actual transaction price is calculated based on land profit margin.

1. As to the grounds of appeal Nos. 1 and 2

According to the reasoning of the judgment below, the court below accepted the above facts-finding by the plaintiff 1, the non-party 1, the non-party 2, and the non-party 3 as 6 non-party 1's share price at around February 1987, and the non-party 1's share price at around July 1989 as 9's ( Address 1, 2, and 3 omitted) to the non-party 4 and the non-party 6's share price at the same time. The non-party 9's total purchase price at the non-party 4 and the non-party 1's share price at the non-party 6's sale price at the non-party 9's market price. The non-party 9's sale price at the non-party 1's market price at the non-party 6's market price at the non-party 7 and the non-party 9's total sale price at the non-party 1's market price at the above 9's market price.

The issue is that the Plaintiff received the purchase price of each of the above lands from the above non-party 2 and the non-party 3, instead of paying the Plaintiff’s share amounting to KRW 70,000,00,000, the sales price of the Plaintiff’s share in each of the above lands shall be KRW 70,000,000. However, such circumstance is merely an issue of internal distribution among the co-sellers, and it is unreasonable because it is irrelevant to the sales price or income amount of the above lands.

2. As to the third ground for appeal

Where a taxpayer imposed and notified transfer income tax on the voluntary payment of income tax on the transfer of real estate, but the tax authority cancelled the imposition disposition of transfer income tax on the ground that the transfer falls under real estate sales business, the said transfer income tax amount constitutes a national tax refund due to the cancellation of the imposition disposition after payment. Accordingly, the right to claim the refund of national tax is finalized by the cancellation of the imposition disposition of transfer income tax, and the additional refund of national taxes is naturally finalized according to the starting date and interest rate under Article 52 of the Framework Act on National Taxes and Article 30(2) of the Enforcement Decree of the same Act (see Supreme Court en banc Decision 88Nu6436, Jun. 15, 1989). The refund of national tax and the additional refund of national tax can not be claimed for the return of the global income tax on the grounds that the refund claim occurred by civil procedure, and the subsequent taxation disposition is unlawful or cancelled (see Supreme Court Decision 94Nu64, Oct. 25, 1994); the remaining amount of the national tax refund and the additional refund of national tax should not be appropriated by the tax amount.

The court below held that the disposition of imposition of global income tax and defense tax in this case cannot be deemed unlawful on the ground that the Defendant did not deduct the amount equivalent to the amount of the global income tax and the national tax on voluntary payment of the Plaintiff’s transfer income tax from the total determined tax amount of global income tax and the defense tax, while cancelling the disposition of imposition of global income tax and the tax on defense tax, and imposing global income tax and the tax on voluntary payment of the defense tax, is just in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as to the appropriation of additional tax on refund. The

3. As to the fourth ground for appeal

Article 82(1) and (2) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) provides for the calculation method of the calculated global income tax amount on a real estate sales businessman. This is based on the rationale that it is reasonable to treat the income from continuing and repetitive acts for the purpose of earning profits among the income from the transfer of real estate assets, etc. separately from the calculated global income tax on the real estate sales businessman. The distinction is based on ordinary social norms, taking into account whether the transfer is for the purpose of earning profits and whether the transfer is conducted for the purpose of earning profits and the continuity and repetition of the business are possible. Thus, in determining whether the transfer is a business income from real estate sales businessman, the ex post facto factors should be considered in calculating the calculated global income tax on the real estate sales businessman. Furthermore, unlike the cases of the transfer income tax, the method of calculating the calculated global income tax on the real estate sales businessman is based on the actual transaction price such as land, and thus, it cannot be deemed that Article 82(1) and (2)3)15) of the Constitutional Court without the taxation without the law.

The judgment of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of legal principles concerning constitutional violation.

4. 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 Song Jin-hun (Presiding Justice)