[2] Where a taxpayer under the former Income Tax Act voluntarily pays a transfer income tax on income from the transfer of real estate, but the tax authority imposed a comprehensive income tax on the income from the transfer of real estate, whether the transfer income tax-related tax amount constitutes an erroneous payment (negative), and whether the interest equivalent to the additional tax on the refund on the tax amount paid by the capital gains tax-related person may be

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

[2] Where a taxpayer paid the transfer income tax on the income accruing from the transfer of real estate by voluntarily paying the transfer income tax along with the marginal profit accruing from the transfer of real estate, but the tax authority imposed the comprehensive income tax by treating it as the business income accruing from real estate sales business without imposing the transfer income tax, the total determined tax amount of global income tax pursuant to Article 131 (1) 3 of the former Income Tax Act (wholly amended by Act No. 4803 of Dec. 22, 1994) may be collected after deducting the transfer income tax self-paid tax amount from the total determined tax amount of global income tax as the already paid tax amount. Thus, since the tax amount of transfer income tax at this time does not fall under the erroneously paid tax amount, the legal principles on the national tax refund and the refund of national tax refund refund under Articles 51 and 52 of the former Framework Act on National Taxes (amended by Act No. 4810 of Dec. 22, 194) cannot be applied to the appropriation of the national tax refund and the refund of national tax on global income tax amount.

[3] 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 on a real estate sales broker. This is based on the rational distinction of income from a temporary or temporary transfer income, as income from a continuous and repeated act for the purpose of profit-making among income from a real estate sales broker is different from a temporary or temporary transfer income. The distinction is based on ordinary social norms, considering whether the transfer is for profit-making purposes, and whether the transfer has continuity and repetition to the extent that it can be viewed as business activity, in light of whether the transfer is for profit-making purposes, and it is necessary to take into account all circumstances before and after the time of the transfer of real estate held by the transferor. Thus, in determining whether it constitutes a business income from a real estate sales businessman, the method of calculating the calculated global income tax on a real estate sales broker shall be considered as ex post facto factors, and in calculating the calculated global income tax on a real estate sales broker, it shall not be in violation of the Constitution.

The court below held that on January 30, 1978, the plaintiff acquired 1/2 shares of forest land of 4,588 square meters and 5,190 square meters and 1/2 shares of forest land of 5,190 square meters and 1/2 shares of the remainder on September 30, 198, and on December 15, 198, he transferred 1,360,000 won to Samsung Housing Co., Ltd. (hereinafter referred to as "government forest land of 2 lots from the next day") and on November 18, 1981 and July 2, 1987, the plaintiff acquired 3 lots of forest land of 4,588 square meters and 5,000 square meters, respectively, and recognized that all of the above land of 3,000 square meters and 1/2 shares were transferred from the Government of Incheon on December 24, 198 (hereinafter referred to as "land of 3,000).

However, whether the income from the transfer of real estate belongs to business income or transfer income under the Income Tax Act shall be determined according to the ordinary social norms, taking into account the transferor’s real estate acquisition and possession status, the scale and frequency of the transfer, the mode, and the existence of continuity and repetition to the extent that it can be seen as business activities, in light of the transferor’s real estate acquisition and possession status, and the degree of continuity and repetition of business activities. In making such determination, not only the transfer of real estate concerned but also the transfer of real estate owned by the transferor should take into account all the circumstances before and after the time of the transfer (see Supreme Court Decision 94Nu14025, Nov. 7, 19

In this case, on July 20, 1978, the Plaintiff decided to carry on the business of selling the non-party and the newly built commercial building, and newly built three units of commercial building on the site in Nam-gu, Incheon ( Address 6 omitted) and sold approximately 2,654 square meters of commercial building until around 1982. From September 1983, the Plaintiff continued to engage in the business of converting the shops into the rental business of unsold stores, and then terminated the business with the non-party around September 1987, and sold the said commercial building's shares to the government around 1987, on the land in Incheon, on the aggregate of 12,31.05 square meters, 4.81 square meters, 1988, 47.07 square meters, 190, 1981, 197, 198, 198, 200 square meters of forest and fields, and 19.19/197, 197.298 square meters of forest and fields.

Nevertheless, the lower court determined that income from the transfer of the Government forest land and Incheon site is subject to transfer income tax. In so doing, the lower court erred by misapprehending the legal doctrine on the distinction between business income and transfer income, thereby adversely affecting the conclusion of the judgment. Therefore, the allegation in the grounds of appeal assigning

2. The details and disposition of global income for the period of 191

구 소득세법(1994. 12. 22. 법률 제4803호로 전문 개정되기 전, 다음부터는 '법'이라고만 한다) 제122조는, 과세표준확정신고를 하여야 할 거주자가 신고를 하지 아니하였거나 신고하여야 할 과세표준에 미달하게 신고한 경우에도 제131조의 규정에 의한 추가납부세액(가산세액을 제외한다)이 없는 때에는 신고불성실가산세에 관한 제121조 제1항의 규정을 적용하지 아니한다고 규정하고, 법 제131조 제1항 및 제2항은 가산세를 포함한 종합소득총결정세액·퇴직소득총결정세액·양도소득총결정세액과 산림소득총결정세액의 합계액이 중간예납세액, 토지 등 매매차익예정신고자진납부세액, 자산양도차익예정신고자진납부세액, 수시부과세액, 원천징수세액, 납세조합의 징수세액, 확정신고자진납부세액 등과 토지 등 매매차익예정신고납부세액공제액, 자산양도차익예정신고납부세액공제액, 납세조합공제세액등의 합계액을 초과하는 때에는 그 초과하는 세액 즉, 추가납부세액을 과세표준확정신고일이 속하는 연도의 8. 17.부터 8. 31.까지 징수한다고 규정하고 있다.

In this case, the Plaintiff voluntarily pays 738,613,542 won to the Plaintiff, which is calculated by subtracting the amount of the tax credit for the transfer income accruing from the transfer of the above store in the year 191 from the income accruing from the transfer of the above store, by adding the amount of the tax credit for the transfer income from the transfer income, and the amount of the tax credit for the transfer income from the transfer income tax, to 794,458,520 won. However, while the Defendant imposed the global income tax for the transfer of the above store in the year 191 by adding the amount of the global income tax for the transfer of the above store in the amount of 741,271,361 won, which was calculated by deducting the amount of the tax credit for the transfer income from the transfer income tax for the transfer income tax for the year 191, the amount of the tax credit for the transfer income tax for the transfer of the above store constitutes the global income tax for the transfer of the above store under Article 131 of the Act, even if the Plaintiff did not apply the final return on the tax base.

Nevertheless, the lower court determined that the part of the detailed disposition on global income for the year 1991 pertaining to KRW 68,226,400 among the disposition on global income was lawful. In so doing, the lower court erred by misapprehending the legal doctrine on exclusion from the application of the additional tax on negligent tax returns, thereby adversely affecting the conclusion of the judgment. The ground of appeal on

3. Whether to deduct additional dues from refund;

In cases where a taxpayer paid a transfer income tax on the income accrued from the transfer of real estate by voluntarily paying the transfer income tax along with the marginal profit accruing from the transfer of real estate, but the tax authority imposes the comprehensive income tax by considering it as business income from real estate sales business without imposing the transfer income tax, the total determined tax amount of global income tax pursuant to Article 131(1)3 of the Act after deducting the amount of tax paid by transfer income tax from the amount of tax paid by transfer income tax as the amount of tax paid. In this case, the legal principles on national tax refund and the refund on the refund of national taxes under Articles 51 and 52 of the Framework Act on National Taxes cannot be applied because the amount of tax paid by transfer income tax does not fall under the amount paid by mistake (see Supreme Court Decision 97Nu12778, Jul. 10, 1998). In addition, the appropriation of national tax refund and the refund on the refund of national tax shall not be deemed to have appropriated the amount of tax paid by transfer income tax deducted as the amount of tax paid by transfer income tax paid by transfer income tax.

Therefore, the court below is just in holding that the payment of transfer income tax and defense tax is legitimate in the total determined tax amount of global income tax and defense tax without imposing transfer income tax on the income accrued from the transfer of the store of the above commercial building, while the defendant pays transfer income tax and defense tax without taking the disposition of imposition of transfer income tax, considering it as real estate sales business, and without taking the disposition of imposition of transfer income tax, and without taking the disposition of transfer income tax and defense tax on the total determined tax amount of global income tax and defense tax, and there is no error in the misapprehension of legal principles as to the appropriation of additional dues as otherwise alleged in the

4. Whether Article 82 of the Act is unconstitutional;

Article 82(1) and (2) of the Act provide for the calculation method of the calculated global income tax on a real estate sales businessman. This provision provides for the method of calculating the calculated global income tax on a real estate sales businessman. This provision is based on the rationale that it is reasonable to divide income from continuing and repeated acts for the purpose of profit, among income from the transfer of real estate and other assets, into taxation, because it differs from the amount of temporary and temporary capital gains. The distinction is based on the ordinary social norms, considering whether the transfer is for profit-making purposes and whether the transfer is made in light of the size, frequency, mode, etc. of the transfer, the degree of continuity and repetition of business activities should be taken into account. However, in determining whether the transfer constitutes the calculated global income tax on a real estate sales businessman, the ex post facto factors should be taken into consideration in calculating the calculated global income tax on a real estate sales businessman. Furthermore, it cannot be said that there is no violation of the Constitution under Article 82(1) and (2) of the Act without the law (see Constitutional Court Order 2013Hun-Ba634,75, 1987.

The decision of the court below to the same purport is justified, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal, and thus, we cannot accept

5. Therefore, among the judgment below, the part concerning imposition of capital gains tax of KRW 354,735,720 and defense tax of KRW 71,482,530 and the part concerning the detailed imposition and disposition of global income of KRW 1991 (the part concerning additional tax of KRW 68,226,40) shall be reversed, and this part of the case shall be remanded to the court below. The remaining appeal shall be dismissed, and the costs of appeal as to the dismissed portion shall be borne by the losing party. It is so decided as per Disposition.

Justices Shin Sung-sung (Presiding Justice)