[방위세부과처분취소][공1987.4.1.(797),447]
Where capital gains tax is fully exempted under the Regulation of Tax Reduction and Exemption Act, the tax base of the defense tax at the time of voluntary payment of the defense tax along with the gains accruing from the transfer;
In full view of the provisions of Article 98(1) of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982), Article 4(1)2, Article 4(2), and Article 5 of the former Defense Tax Act (amended by Act No. 3476 of Dec. 31, 1981), even in a case where capital gains tax is exempted in full under the Regulation of Tax Reduction and Exemption Act, if a preliminary return on the gains from transfer of assets is made and only the defense tax is voluntarily paid, the capital gains tax for which a preliminary return on the gains from transfer of assets under Article 98 of the Income Tax Act is made shall be the tax base for the defense tax.
Article 98(1) of the former Enforcement Decree of the Income Tax Act (amended by Act No. 3576, Dec. 21, 1982); Article 4(1), Article 4(2), and Article 5 of the former Defense Tax Act (amended by Act No. 3476, Dec. 31, 1981);
Supreme Court Decision 86Nu262 Decided October 28, 1986
[Judgment of the court below]
Head of Sungbuk Tax Office
Seoul High Court Decision 84Gu323 delivered on December 13, 1984
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
According to the reasoning of the judgment of the court below, the court below recognized that the plaintiff transferred 3,027 square meters to Sungnam-si ( Address omitted) and 1 parcel Do 3,027 Do Do Do 3,027 Do Do Do Do Do Do , and then scheduled return on the gains from the transfer of assets pursuant to Article 95 (1) of the Income Tax Act of the same year, and that the transfer income tax was paid by voluntary payment of KRW 6,315,578 as the above transfer falls under the case where the above transfer is transferred to a local government for a public project under Article 57 (1) 1 of the Regulation of Tax Reduction and Exemption Act, and determined that the provision of Article 98 (1) of the Income Tax Act is not applicable to the case where a voluntary payment is not possible due to the full exemption of the transfer income tax as in this case, the defendant's exemption from the transfer income tax shall be deemed to have reached the above KRW 27,998,51, and thus, it is justified
However, according to Article 98 (1) of the former Income Tax Act (Act No. 3576, Dec. 21, 1982) which was in force at the time of the disposition of this case, when a taxpayer pays a tax base of capital gains tax along with the marginal profits accruing from the transfer of assets, the amount equivalent to 10/100 of such calculated tax amount shall be deducted from such calculated tax amount. According to Article 4 (1) 2 of the former Defense Tax Act (Act No. 3476, Dec. 31, 1981) of the same Act, where the principal tax is income tax, the tax base of the defense tax shall be the tax base of the income tax which has been deducted from the calculated income tax under the provisions of the Income Tax Act and Article 7 (1) of the Regulation of Tax Reduction and Exemption Act (Act No. 3576, Dec. 21, 1982).
Therefore, even if the transfer income tax is exempted from the total amount, the judgment of the court below which judged that the amount of the transfer income tax calculated without the above preliminary return payment tax credit shall be the defense tax base of the plaintiff in this case, who made the return on the profit accruing from the transfer of the transfer income and paid the tax only by the defense tax, shall be deemed to be erroneous in the misapprehension of legal principles of the tax base under Article 98 (1) of the Income Tax Act and Article 4 (1) 2 and (2)
Therefore, the judgment below is reversed, and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yellow-ray (Presiding Justice)