평균적 납세자로 하여금 합리적이고도 정당한 기대를 가지게 할 만한 것이어야 신뢰보호의 원칙이 적용되는 것임[기각]
Cho Jae-2017-B-0342 (Law No. 14, 2017)
That the principle of trust protection is applied so that an average taxpayer can have a reasonable and reasonable expectation;
In order to apply the principle of protecting trust to the acts of tax authorities, trust given by the tax authorities through public opinion expression, etc. should have an average taxpayer have reasonable and reasonable expectation.
Scope of houses falling under three or more houses for 167-31 households under the Enforcement Decree of the Income Tax Act;
Article 104 of the Income Tax Act shall apply to transfer income tax rates.
2017Gudan442 Revocation of Disposition of Imposing capital gains tax
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○ Head of tax office
March 21, 2018
April 4, 2018
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s disposition of imposition of capital gains tax of KRW 271,259,320 (hereinafter referred to as “instant disposition for convenience”) for the year 2010 rendered to the Plaintiff on August 18, 2016 shall be revoked.
1. 이 사건 처분이 이루어진 배경(☞ 다툼 없는 사실)
A. On October 25, 2010, the Plaintiff did not report the transfer income tax even though it transferred ○○ apartment (hereinafter referred to as “instant apartment”) to ○○○-dong, Seoul, 000 ○○ apartment (hereinafter referred to as “instant apartment for convenience”).
B. Pursuant to Article 104(1), (4), and (6) of the former Income Tax Act (amended by Act No. 10408, Dec. 27, 2010; hereinafter the same), the Defendant issued the instant disposition imposing capital gains tax calculated by applying the basic tax rate to the tax base calculated as the transfer value of the instant apartment at KRW 890 million, and the acquisition value at KRW 302,420,977, respectively.
C. The Plaintiff dissatisfied with the instant disposition and filed an objection with the Tax Tribunal on December 30, 2016. However, on March 14, 2017, the Plaintiff did not accept the request for a trial (Seoul High Court Decision 2017 Mine342).
2. Determination on the legitimacy of the instant disposition
A. The Plaintiff asserts that the instant disposition is unlawful on the ground of the following circumstances.
(1) "기존 주택 임대사업자의 3주택 이상 해당의 2003. 12. 31. 이전 임대등록주택인 이 사건 아파트에 대해 양도소득세(구 소득세법 시행령 제167조의3 제1항 제2호 나목, 구 소득세법 제104조 제1항, 제4항, 제6항) 과세는 헌법의 위배로 법에 근거가 없는 과세"이다(☞ 과세 근거법령의 위헌에 따라 "원고에 대한 과세규정이 애초부터 없는 사건"이라는 주장, 즉 이 사건 처분이 이른바 '조세 법률주의의 원칙'에 어긋난다는 주장으로 이해됨).
(2) The instant disposition is against the so-called “the principle of protection of trust” required by tax law.
B. The court decides that the instant disposition is lawful on the following grounds.
(1) First, as seen above, the instant disposition was made based on the relevant laws and regulations, and it cannot be deemed that the contents of the relevant laws and regulations violate the Constitution. Thus, it cannot be deemed that the instant disposition violates the so-called "the principle of tax law".
(2) Next, the principle of trust protection and the principle of respect for non-taxable practices, etc. as referred to in tax law are exceptional cases where there are special circumstances where it is deemed that protecting the taxpayer’s trust even if they sacrifice the principle of legality. In order to apply the principle of trust protection to the acts of the tax authority, the trust granted by the tax authority through the expression of public opinion, etc. should have an average taxpayer reasonable and reasonable expectations (see, e.g., Supreme Court Decision 2011Du5940, Dec. 26, 2013). There is no evidence to deem that the trust granted by the Defendant to the Plaintiff during that period has reached that level.
3. Conclusion
Therefore, the plaintiff cannot accept the plaintiff's claim of this case since the plaintiff's claim of this case is unfair as well as there are no other illegal grounds for the disposition of this case.