Whether the tax base of special rural development tax is the reduced or exempted income tax.

The amount of special rural development tax shall be the tax base of the reduced or exempted capital gains tax and the remaining tax base shall be the amount obtained by deducting the amount equivalent to 10/100 from the reduced or exempted capital gains tax under Article 108 of the Income Tax Act.

Article 5 of the Act on Special Rural Development Tax

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of KRW 6,734,470 for a special rural development tax against the Plaintiff on May 11, 2007 is revoked.

1. Details of the disposition;

A. On December 20, 2006, the Plaintiff transferred ○○○○○○○○○○ apartment owned by itself (hereinafter “instant apartment”) to ○○○○○.

나. 원고는 2007. 2. 26. 과 4. 13. 두 차례에 걸쳐 위 아파트가 양도소득세 감면대상인 관계로 농어촌특별세법 제5조 제1항 제1호에 따라 감면된 양도소득세의 20%에 해당하는 농어촌특별세법 제5조 제1항 제1호에 따라 감면세액인 336,723,156원을 과세표준으로 하지 아니하고, 소득세법 제108조의 예정신고납부세액공제 규정을 적용하여 양도소득세 감면세액에서 10%를 공제한 303,050,841원{= 336,723,156원 - (336,723,156원 ✕ 0.1), 10원 미만 버림, 이하 같다}을 과세표준으로 하여 산출한 농어촌특별세 60,610,160원(= 303,050,841원✕0.2)을 납부하였다.

다. 피고는 2007. 5. 11. 원고가 납부하여야 할 농어촌특별세의 경우에는 소득세법 제108조의 예정신고납부세액공제 규정이 적용되지 않는다는 이유로 원고에게 양도소득세 감면세액 336,723,156원의 20%에 해당하는 농어촌특별세액 67,344,631원(=336,723,156원✕0.2)에서 원고가 이미 납부한 60,610,160원을 공제한 6,734,470원(=67,344,631원-60,610,160원)을 농어촌특별세로 부과하였다(이하 이 사건 부과처분이라 한다).

(A) Evidence Nos. 1, 2, and 1, and the purport of the whole pleadings and arguments

2. The legality of disposition.

A. The plaintiff's assertion

Since the Plaintiff transferred the apartment of this case and voluntarily reported and paid the special rural development tax within the scheduled return period, it is clear that the amount equivalent to 10/100 of the tax amount paid from the calculated tax amount of special rural development tax to be paid under Articles 7(1) and 108(1) of the Act on Special Rural Development and Income Tax should be deducted. The Defendant’s disposition of this case, which different opinions, is unlawful

B. Relevant statutes

As shown in the attached Form.

C. Determination

In full view of the following circumstances, Article 108 of the Income Tax Act cannot apply to cases where capital gains tax is reduced or exempted as in the instant case. Therefore, the amount of special rural development tax should be the tax base, and the remaining amount after deducting 10/100 from the reduced or exempted capital gains tax amount under Article 108 of the Income Tax Act shall not be the tax base.

(1) Article 5(1)1 of the Act on Special Rural Development Tax provides that “the tax amount reduced or exempted for income tax, etc. under the Restriction of Special Taxation Act” shall be the tax base for special rural development tax, and there is no provision on the tax amount paid by preliminary return under the Act

(2) In light of the literal meaning and legislative intent of Article 7(1) of the Act on the Special Rural Development Tax, “the pertinent provision shall be reported and paid in accordance with the example of reporting and paying the principal tax,” and the said provision merely refers to a simple procedural provision such as methods and timing of reporting and paying, and cannot be deemed to include the application of substantive provisions such as tax reduction and exemption. Thus, the provisions of Article 7(1) of the Act on the Special Rural Development Tax cannot be deemed to apply to the special rural development tax, on the sole basis of the provisions of Article 7(1)

(3) 구 방위세법(1990. 12. 31. 법률 제4280호로 폐지되기 전의 것)제4조 제2호는 방위세 과세표준을 산정함에 있어 "소득세법의 규정에 의한 소득세 산출세액에서 동법 및 조세감면규제법 제7조 제1항의 규정에 의한 세액공제를 한 소득세법"일고 규정ㅎ고 있어 소득세법의 예정신고납부세액공제 규정이 적용될 수 있는 여지를 두고 있음에 반하여, 농어촌특별세법 제5조 제1항 제1호는 단순히 "조세특례제한법·관세법 및 지방세법에 의하여 감면을 받는 소득세 등의 감면세액"이라고만 규정하고 있을 뿐 소득세법에 의한 세액공제를 그 대상으로 포함하고 있지 아니한 사정 등에 비추어 보면, 원고가 들고 있는 대법원 1987. 2. 10. 선고 85누6 판결은 이 사건과 그 사안을 달리하는 것으로서 이 사건에 그대로 적용할 수 없는 것인 점

3. Conclusion

Therefore, the disposition of this case by the defendant is legitimate, and the appeal by the Committee is without merit, and the plaintiff's claim is dismissed as per Disposition.

The attached Form shall be attached thereto.

public official law, order of law,

Article 5 of the Act on Special Rural Development Tax and Tax Rate

Category A

Section 6 5

Tax Rate

1.

Tax amount reduced or exempted for income tax, corporate tax, customs, acquisition tax or registration tax reduced or exempted under the Restriction of Special Taxation Act, the Customs Act and the Local Tax Act (excluding subparagraph 2)

20/100

2. Omission;

(1) The amount of special rural development tax shall be calculated by multiplying the tax base by the pertinent tax rate under each of the following subparagraphs:

Article 7 of the Act on Special Rural Development Tax, etc.

(1) Special rural development tax under Article 5 (1) 1 shall be reported and paid together with the special rural development tax when the relevant principal tax is reported and paid (excluding interim prepayment), and where there is no principal tax to be reported and paid, the special rural development tax shall be reported and paid in the same manner as reported and paid the relevant principal tax is reported and paid: Provided, That this shall not apply where the provisions of paragraphs (2) and (3) are applied.

(2) Not more than omission

○ Tax Credit for Preliminary Return Payment under Article 108 of the Income Tax Act (amended on December 28, 199)

(1) In case where a person pays a tax by voluntary return with the scheduled return, the amount equivalent to 10/100 of the tax amount to be paid from such calculated tax amount shall be deducted.

(2) The deduction under paragraph (1) shall be referred to as the tax credit for preliminary return and payment (amended on December 28, 199).

○ former Defense Tax Act (amended by Act No. 4280, Dec. 31, 1990)

Article 4 (Tax Base and Tax Rate)

(1) The amount of defense tax shall be calculated by multiplying the tax base by the following tax rates:

Category 5

Section 6 5

Tax Rate

2.

The income tax amount which deducts the tax amount under Article 7 (1) of the Regulation of Tax Reduction and Exemption Act from the calculated income tax amount under the Income Tax Act.

10/100 in cases where the amount of income tax base is 8.4 million won or less a year (700,000 won a month), and 20/100 in cases where the amount of income tax base exceeds 8.4 million won a year (7 million won a month);