[방위세부과처분취소][집38(2)특,359;공1990.8.15.(878),1618]
Tax base in cases where the transfer income tax is fully exempted under the Regulation of Tax Reduction and Exemption Act, but the preliminary return on the gains from transfer of assets is made and only the defense tax is voluntarily paid (=the amount of the transfer income tax paid
Even if the capital gains tax is fully exempted under the Regulation of Tax Reduction and Exemption Act, if the preliminary return on the gains from the transfer of assets is made and only the defense tax is voluntarily paid, the capital gains tax amount paid for the preliminary return on the gains from the transfer of assets as provided in Article 98 of the Income Tax Act shall be
Articles 4 and 5 of the Defense Tax Act, Article 98 of the Income Tax Act
Supreme Court Decision 86Nu262 delivered on October 28, 1986 (Gong1986, 3143) 87Nu544 delivered on September 8, 1987 (Gong1987, 1591)
Law Firm Dong-dong Law Office, Attorneys Lee Jong-won et al., Counsel for the plaintiff-appellant-appellee)
Head of Central Tax Office
Busan High Court Decision 89Gu1117 delivered on February 23, 1990
The part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to Busan High Court.
The defendant's appeal is dismissed.
The costs of appeal to the Supreme Court are assessed against the defendant.
The plaintiff and the defendant's grounds of appeal are also examined.
According to the reasoning of the judgment below, the court below, based on its adopted evidence, found that the plaintiff transferred the above 1-1,810 forest land owned by the plaintiff to the non-party 1-6 farm village, and that the non-party 1-6 farm land was transferred to the non-party 3,70,00,00 won in total to the non-party 1-6 farm house, which is the non-party 1-6 farm village, and that the value of the transfer equivalent to the plaintiff's share shall be 3,437,18,361 won, and the acquisition value shall be 629,463,239 won in accordance with the proviso to Article 62 (1) of the Regulation of Tax Reduction and Exemption Act, Article 50 (3) 2 of the Enforcement Decree of the Income Tax Act, and that the non-party 1-6 farm land should be exempted from the tax credit for the remaining 1-6 farm land to the non-party 5-6 farm village 1-6 farm village.
However, comprehensively taking account of the provisions of Article 98(1) of the Income Tax Act, Articles 4(1)2, 4(2), and 5 of the Defense Tax Act, where the transfer income tax is exempted in full under the Regulation of Tax Reduction and Exemption Act, even if the transfer income tax is exempted in full, if the return on the profits accruing from the transfer of the assets is made and only the defense tax is voluntarily paid, the transfer income tax which was deducted from the return on the profits accruing from the transfer of the assets provided for in Article 98 of the Income Tax Act shall be the tax base of the defense tax (see, e.g., Supreme Court Decisions 86Nu262, Oct. 28, 1986; 87Nu544, Sept. 8,
Therefore, even if the transfer income tax is exempted from the total amount, the judgment of the court below which judged that the transfer income tax amount calculated without the deduction of the above scheduled tax return to the plaintiff of this case who paid the transfer income tax to the plaintiff of this case who paid the transfer income tax on the return of the profit accruing from the transfer of the transfer income even if the transfer income tax is exempted from the total amount shall be deemed as the defense tax base, and there is an error of law by misunderstanding the legal principles of the tax base under Article 98
On the other hand, in light of the records, the fact-finding or judgment of the court below is just and there is no error of law of misunderstanding the facts against the rules of evidence or misunderstanding the legal principles as to self-employed farmland, such as the land of six parcels in this case, as of the date of transfer where the plaintiff had cultivated continuously for 8 years or longer from the time of acquisition to the time of transfer, and there is no error of law by misunderstanding the facts against the rules of evidence or misunderstanding the legal principles as to self-employed farmland.
Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below. The defendant's appeal is dismissed. The costs of appeal as to this dismissed part are assessed against the losing party. It is so decided as per Disposition by the assent
Justices Lee Chang-chul (Presiding Justice)