[양도소득세등부과처분취소][공1996.1.1.(1),103]
[1] Whether measures such as refund can be taken even where there is no legitimate refund or application for exemption under the former Regulation of Tax Reduction and Exemption Act
[2] Whether the measure taken to calculate the total income by multiplying the sale price of each household on each floor by the number of households on each floor is legitimate
[1] In light of the purport of Article 62(1) and (3) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989), even if the pertinent land is subject to refund or exemption, the tax authority may take such measures as a legitimate refund or exemption. Thus, the national who has transferred the relevant land did not have paid the transfer income tax. In addition, even if the person who is not the transferor applies for refund of the transfer income tax or the purchaser applies for exemption of the transfer income tax by the Korea Land Development Corporation and other end-user as prescribed by the Presidential Decree, even if the person who is not the transferor applies for exemption of the transfer income tax, it cannot be deemed as a legitimate application under the above provision, and
[2] Unless there are special circumstances, it is legitimate for the tax authority to determine the total sales amount of one household's sales price surveyed by each floor multiplied by the number of sales units in the case of the same floor as the total sales price for the same apartment house with the same area for two months and the same apartment house for two months.
[1] Article 62 (1) and (3) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989); Article 50 (9) and (10) of the former Enforcement Decree of the Regulation of Tax Reduction and Exemption Act (amended by Presidential Decree No. 12881 of Dec. 30, 1989) / [2] Articles 114-2 and 120 of the Income Tax Act
[1] Supreme Court Decision 88Nu9596 delivered on April 11, 1989 (Gong1989, 773) Supreme Court Decision 88Nu12165 delivered on September 26, 1989 (Gong1989, 1594) Supreme Court Decision 90Nu542 delivered on September 25, 1990 (Gong190, 2202), Supreme Court Decision 93Nu11777 delivered on January 25, 1994 (Gong194, 851)
Plaintiff (Attorney Kim Full-seop et al., Counsel for the plaintiff-appellant)
The Director of Budget Office
Daejeon High Court Decision 94Gu1102 delivered on June 16, 1995
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The Plaintiff’s attorney’s ground of appeal is examined.
1. On the first ground for appeal
Article 62 (1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4165 of Dec. 30, 1989) provides that where a national transfers a parcel of land as a construction site for a house smaller than national housing size under the Housing Construction Promotion Act, and a person who has acquired it constructs national housing within such period as determined by the Presidential Decree, the transfer income tax or special surtax on income accruing from the transfer of the relevant parcel of land shall be refunded to the national who has transferred the relevant parcel of land: Provided, That where the Korea Land Development Corporation under the Korea Land Development Corporation Act or an end-user as determined by the Presidential Decree transfers a parcel of land to the Korea Land Development Corporation under the Korea Land Development Corporation Act, the transfer income tax or special surtax shall be exempted, and the provisions of paragraph (1) shall apply to the case where the transferring national makes an application under the conditions as prescribed by the Presidential Decree: Provided, That in the case of the proviso of paragraph (1) of this Article, even if the relevant parcel of land is subject to refund or exemption, the tax authority may take such measures as legitimate refund or exemption.
The judgment of the court below to the same purport is just and there is no error of law by misunderstanding the legal principles like the theory of lawsuit.
2. On the second ground for appeal
The court below held that the decision of the court below is legitimate to determine the total income from the sale of housing units by the amount calculated by multiplying the sale price of one household investigated by the above floor by the sale price in the case of the same floor as the sale price in the case of the same floor as the sale price in the case of the same floor as the area of the housing units on two parcels, both of which are equal to the area of the housing units in the city of Bupyeong-si and the sale price of the plaintiff, and the sale price for the same floor is different. In light of the records and the purport of the relevant statutes, the decision of the court below is just and there is no error
3. 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 Chocheon-sung (Presiding Justice)