Title
A disposition of reduction or correction shall not be a separate independent taxation from the initial report or disposition of imposition.
Summary
In a case where it is intended to dispute the remaining part of a disposition of reduction that has not yet been revoked due to a disposition of reduction, it shall not be subject to an appeal litigation, and the remaining part of a disposition of reduction that has not been revoked by a decision of correction in the initial report or disposition of reduction shall be subject to an appeal litigation. In such cases, it shall be determined on the basis of the initial disposition as
Related statutes
Article 19-2 (Non-Inclusion of Bad Debts in Loss)
Article 19-2 (Non-Inclusion of Bad Debts in Deductible Expenses)
Cases
2016Guhap2863 Revocation of Disposition of Levying Transfer Income Tax
Plaintiff
○○ ○ Heading ○ ○ Heading
Defendant
○ Head of tax office
Conclusion of Pleadings
December 13, 2017
Imposition of Judgment
January 24, 2018
Text
1. Of the instant lawsuits, the part requesting the revocation of the disposition imposing capital gains tax as of April 15, 2016, and the portion requesting the revocation thereof.
4.15.A request for revocation of a disposition rejecting rectification shall be dismissed in full, in excess of KRW 3,566,018.
2. The plaintiff's remaining claims are dismissed.
3. The costs of lawsuit shall be borne by each person;
Cheong-gu Office
The Defendant’s refusal to rectify the capital gains tax for the year 2014, which was imposed on the Plaintiff on April 15, 2016, is revoked. The Defendant’s revocation of the disposition exceeding KRW 8,123,972, out of the disposition imposing capital gains tax for the year 2014, imposed on the Plaintiff on April 15, 2016.
Reasons
1. Details of the disposition;
A. The transfer of each of the instant lands and the imposition of capital gains tax on December 1, 2014
1) The Plaintiff’s land listed below [Attachment 1] Nos. 1 through 6 (hereinafter “each land of this case”)
In addition, one of them is set by the sequences when referring to a parcel of land. On the other hand, the Plaintiff acquired the land of 1, 2, 4, and 6 acquired by the gift as the cause of the gift by the reason at each of the dates stated in the [Attachment 1] Acquisition column, and transferred the land as the cause corresponding to the following [Attachment 1] date.
[Attachment 1] Omitted
2) On April 15, 2014, April 2014, April 2014, and May 8, 2014, the Plaintiff separately reported the capital gains tax on each of the instant land to the Defendant. On December 1, 2014, the Defendant revised and imposed capital gains tax of KRW 61,087,635 (including additional taxes; hereinafter the same shall apply) on the Plaintiff on December 1, 2014, collectively, as the capital gains tax reverted to the year 2014. The transfer value at the time is the actual transaction value; the acquisition value at the time is the conversion value; the land at each of the instant 3 and 5; the instant issues were calculated based on the standard market value at the time of donation (individual published land price)
B. Plaintiff’s request for reduction and correction, and Defendant’s partial refusal of correction
1) On January 11, 2016, the Plaintiff’s farmland, etc. on the Defendant’s land of this case 3 and 5
The provisions on capital gains tax reduction and exemption were applied to the instant land, and accordingly the acquisition value was applied to the conversion value by applying the acquisition value to 16,619,527 won, thereby filing an application for rectification to reduce capital gains tax to 44,468,108 won (61,087,635 won - 16,619,527 won).
2) Accordingly, on March 10, 2016, the Defendant accepted the Plaintiff’s request for correction, and applied the provision on capital gains tax reduction and exemption for self-arable farmland, etc. on the land in this case. However, on the land in this case, the Defendant decided not to accept the Plaintiff’s request for correction, and decided not to reduce capital gains tax for the year 2014 as KRW 33,578,712. On March 25, 2016, the Defendant refunded KRW 28,217,320 to the Plaintiff on March 25, 2016 (including special rural development tax. Of which, the reduction of capital gains tax is included, KRW 27,508,923) and on April 15, 2016, notified the Plaintiff of the resolution on capital gains tax reduction and details of capital gains tax determination as above.
(c) Procedures of the previous trial;
The Plaintiff appealed and filed an appeal with the Tax Tribunal on July 7, 2016, but on July 2016
10.4. The dismissal was made.
D. Results of appraisal of market price of the land at issue of this case
On the other hand, as a result of the court's entrustment of appraisal to AA, acquisition and transfer of the instant land
The appraised value as at the time of the market price shall be as specified in the following [Attachment 2]:
[Attachment 2] Omitted
E. Defendant’s ex officio rectification of reduction
On January 4, 2018, when the instant lawsuit was pending, the Defendant, as seen below, is the Plaintiff.
Of the allegations, ① accepted both claims, ③ the amount of capital gains tax for the Plaintiff was reduced to KRW 20,185,545,000, and then notified the Plaintiff of the amount [13,393,167 won to be reduced (=3,578,712 won -20,185,545 won)]. Detailed details of the calculation of capital gains tax amount are as shown in Appendix 2.
Facts without any dispute, Gap's evidence 1 through 3, Eul's evidence 1 through 8 (including each number), the result of the entrustment of appraisal to AA and the purport of the whole pleadings of this Court.
2. The plaintiff's assertion
(a) The claim that the transaction price should be calculated based on the court appraisal (i.e., claim);
In calculating the transfer income tax on the land at issue of this case, the transfer value was the actual transaction value.
Therefore, the acquisition value shall be calculated as the actual transaction value, and since the cause of acquisition of each of the above lands was donated, such acquisition value shall be applied pursuant to Article 163(9) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26067, Feb. 3, 2015; hereinafter the same).
B. The claim for the application of the standard market price of each land of this case 4 and 6 (B)
Land of 4 and 6 of the issues of this case shall be assessed only on land in addition to land.
In addition, since the court's appraisal includes the trees in the court's appraisal, in the case of the 4-6 land, the market price on the acquisition value is not verifiable, and the acquisition value and the transfer value should be applied to all the standard market price.
(c) Claim for further deduction of necessary expenses (III).
With respect to the transfer of the pertinent land, 3/100 of the officially assessed individual land price at the time of acquisition shall be additionally deducted as necessary expenses pursuant to Article 97(2)2 of the Income Tax Act and Article 163(6)1 of the Enforcement Decree of the Income Tax Act.
(d) Justifiable amount of transfer income tax;
Accordingly, the amount of capital gains shall be 8,123,972 won.
3. Specifying the instant disposition
In this case, the Plaintiff: (a) deemed that the Defendant’s notification as of April 15, 2016, and the Plaintiff’s notification as of January 11, 2016 constituted both a disposition of refusal of correction and a disposition of imposition of capital gains tax as of January 11, 2016; and (b) sought revocation of the part exceeding KRW 8,123,972 of the disposition of refusal of correction and imposition of capital gains tax. Accordingly, the Defendant’s disposition subject to the instant lawsuit is subject to the instant disposition; (c) the Defendant’s disposition as of April 15, 2016; and (d) the disposition of refusal of correction (hereinafter “instant disposition of refusal”) as of KRW 16,959,185 of the capital gains tax as of April 15, 2016 (hereinafter “instant disposition of imposition”).
4. Determination
(a) Relevant statutes;
Attached Form 1. The entry in the relevant Acts and subordinate statutes are as follows.
B. Rejection part
1) Part of the claim for revocation exceeding KRW 8,123,972 of the instant disposition
㈎ 원고의 주장에 의하면, 이 사건 부과처분은 2014. 12. 1.자 부과된 양도소득세액을 감액하는 감액경정처분이다. 그런데 감액경정처분은 당초의 신고 또는 부과처분과 별개인 독립의 과세처분이 아니라 그 실질은 당초의 신고 또는 부과처분의 변경이고 그에 의하여 세액의 일부취소라는 납세자에게 유리한 효과를 가져오는 처분이므로, 감액처분 자체를 다투는 것은 그 취소를 구할 소의 이익이 없다. 이에 따라 감액처분으로도 아직 취소되지 않고 남아 있는 부분이 위법하다 하여 다투고자 하는 경우, 감액처분을 항고소송의 대상으로 할 수는 없고, 당초의 신고나 부과처분 중 경정결정에 의하여 취소되지 않고 남은 부분을 항고소송의 대상으로 삼아야 하며, 이 경우 제소기간을 준수하였는지 여부도 당초의 처분을 기준으로 하여 판단하여야 한다(대법원 1991. 9. 13. 선고 91누391 판결, 대법원 2012. 9. 27. 선고 2011두27247 판결, 대법원 2014. 3. 13. 선고 2012두7370 판결 등 참조).
㈏ 이 사건에 관하여 보건대, 원고가 이 사건 부과처분을 감액경정처분임을 전제
In light of the above legal principles, seeking revocation of the portion of national tax disposition which was modified favorably to the Plaintiff, and thus there is no benefit in the lawsuit. Meanwhile, even if a person intending to institute an administrative litigation against a disposition imposing national tax pursuant to Articles 56(2), 56(3), 68(1), and 61(1) of the Framework Act on National Taxes intends to file an administrative litigation within 90 days from the date he/she becomes aware of such disposition, and then file an administrative litigation within 90 days from the date he/she received notice of the decision. Unlike the discretionary principle of the administrative appeal applicable to the general administrative litigation, the administrative litigation seeking revocation of national tax disposition is subject to the necessary ex officio principle which must undergo a request for examination or a request for adjudication as prescribed by the Framework Act on National Taxes. Thus, a request for examination or a request for adjudication must satisfy the legitimate requirements such as the filing period, and if a request for examination or a request for adjudication is filed with the lapse of the period for filing the lawsuit, it cannot be deemed unlawful.
2) The part of the claim for revocation in excess of KRW 3,566,018 among the disposition rejecting the correction of the instant case
As seen earlier, the Defendant accepted both the Plaintiff’s assertion ① and ③ during the course of the instant lawsuit, and corrected ex officio reduction of capital gains tax amount to KRW 20,185,545 on January 4, 2018. Therefore, the part on the claim for revocation as to the claim for revocation in the instant lawsuit is unlawful, on the grounds that the portion in excess of KRW 3,566,018 (i.e., the claim amount 16,959,185 - the reduced amount 13,393,167) has already been reduced, and there is no further dispute.
C. Determination as to the remainder of the instant disposition
1) Organization of issues
As seen earlier, since the Defendant accepted the Plaintiff’s assertion Nos. 1 and 3, and corrected the reduction accordingly, the issue of this part is the legitimacy of the Plaintiff’s assertion
2) Relevant legal principles
Where forest trees are transferred along with forest land, income generated from the transfer of forest trees corresponding to business income;
In a case where: (a) it is reasonable to view that only the remaining income from the transfer of forest trees, excluding income from the transfer of forest trees, is subject to the taxation of capital gains tax following the transfer of forest land. In such a case, whether the income from the transfer of forest trees falls under the business income shall be determined in accordance with ordinary social norms by taking into account whether the growing activity for the production of forest is for profit-making purposes, the continuity and repetition of such activity to the extent that it can be seen as the business activity in light of the substance, scale, period, mode, etc. Furthermore, even if the forest trees were transferred along with the forest land, even if there was no growing activity for the production of the forest trees or there was no growing activity for the production of the forest, barring any special circumstance to deem that the forest trees was subject to a transaction separate from the forest land, the entire income from the transfer of the forest is subject to the taxation of capital gains tax, and the determination of whether the forest trees is separate from the forest land ought to be made objectively by taking into account the parties’ trade purpose, the content of the contract, evaluation of the value of the forest trees, and the surrounding transaction circumstances (see, etc.
3) Specific determination
In light of the following circumstances revealed through the aforementioned evidence and the facts acknowledged as above, it is reasonable to view that, at the time of transfer of each of the above lands 4 and 6, there is no evidence to acknowledge that the Plaintiff engaged in growing activities or engaged in forestry, which is recognized as business feasibility at the time of acquisition and transfer of each of the above lands, and that the Plaintiff seems to have no means to register the trees, etc. on each of the above lands under the laws on standing timber or to have no means to write a name, with regard to the trees, etc. on each of the above lands. In light of the fact that the Plaintiff did not transfer the land in the course of engaging in forestry, but the land was transferred as part of its fixtures, i.e., the transfer of the land., the cost for the transfer of trees, etc. on each of the above lands 4 and 6 is subject to the transfer income tax due to the transfer of
5. Conclusion
Of the instant lawsuits, the part of the claim for revocation of the disposition imposing capital gains tax of this case and the part of the claim for revocation exceeding KRW 3,566,018 of the disposition rejecting the correction of this case are unlawful and all of them are dismissed. The remaining claims of the Plaintiff are dismissed as they are without merit. It is so decided as per