Whether it violates the principle of good faith and prohibition against double Jeopardy

Even if the original disposition of taxation was cancelled because it was erroneous in the statutory interpretation, and again issued a new disposition, it cannot be viewed as violating the principle of good faith and prohibition against double Jeopardy.

The contents of the decision shall be the same as attached.

Seoul Administrative Court Decision 98Gu20987 delivered on April 8, 1999

1. 원심 판결을 다음과 같이 변경한다. 가. 피고의 피승계인 ㅇㅇ세무서장이 1997. 10. 6. 원고에게 한 종합소득세 금32,770,610원의 부과처분 중 금 31,795,620원을 초과하는 부분을 취소한다. 나. 원고의 나머지 청구를 기각한다. 2. 소송 총비용은 원고의 부담으로 한다.

1. Details of the disposition;

The following facts are acknowledged in full view of Gap evidence 1 through 6, Eul evidence 1-1 to Eul evidence 1-14, and the whole purport of the pleadings, and contrary thereto, Gap evidence 7 is not trusted, and there is no other counter-proof.

A. Return and payment of global income tax by the Plaintiff

원고는 1992. 11. 30. 소외 박ㅇㅇ등 7인과 공동으로 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ의 ㅇ 대지 2,272.4㎡를 취득하여 그 지상에 지하 3층 지상 5층의 상가건물 12,072,95㎡ (그 중 원고의 지분은 10분의 2이고, 이하 원고지분을 이 사건 부동산이라 한다)를 신축하여 1993. 11. 20. 위 건물을 합계 8,378,269,798원에 분양하였다. 원고는 1994. 5. 31. 소득세를 신고납부함에 있어 분양가액에 표준소득율을 곱한 추계 사업소득금액 92,160,967원에 기타 소득 6,703,940원을 합한 금 98,864,907원에서 소득공제액 2,100,000원을 뺀 96,764,907원을 과세표준으로 하고 이에 종합소득세 기본세율을 곱하여 계산한 금 36,182,450원을 1993년도분 종합소득세로 신고납부하였다.

(b) Decision of correction of the amount of tax (application of global income tax).

피고의 피승계인 ㅇㅇ세무서장(1999. 9. 1.자 관할구역 변경에 따라 피고가 ㅇㅇ세무서장의 지위를 승계하였다. 이하 ㅇㅇ세무서장과 피고를 모두 피고라고만 한다)은 ㅇㅇ세무서로부터 이 사건 부동산에 관한 정정된 1993년도 사업장별수입금액결정상황표를 통보받고 1997. 4. 1. 원고에게 별지 1. 세액계산표 기재(1) 당초처분란 기재와 같이 종합소득세 73,080,930원을 추가로 부과하였다. 이에 대하여 원고가 1997. 6. 3. 심사청구를 하자 처분청은 같은 달 27. 별지 1. 세액계산표 기재(2) 감액처분란 기재와 같이 종합소득세 기본세율 50%를 적용하여 세액을 산출한 후 초과 부과된 세액에 환급이자를 가산한 40,415,040원을 환급하는 내용의 직권경정을 하였다.

C. The defendant's taxation of this case (application of transfer income tax method)

After that, when the district tax office having jurisdiction over the joint business place applied the transfer income tax rate to the estimated income, the defendant issued a notice of the determination of the comprehensive income tax by the initial method, and on October 6, 1997, on the other hand, pursuant to Article 82 (2) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same shall apply), Article 142 (1) 2 of the Enforcement Decree of the former Income Tax Act (amended by Presidential Decree No. 14467, Dec. 31, 1994; hereinafter the same shall apply) and Article 67 (2) 2 (b) of the Enforcement Decree of the same Act (amended by Ordinance of the Prime Minister No. 505, May 3, 1995; hereinafter the same shall apply), the defendant additionally imposed the disposition of this case by applying the transfer income tax rate of 60% to the estimated income, as stated in the tax invoice (3) of this case.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff (1) The plaintiff (1) against global income tax imposed by the defendant on April 1, 1997 by accepting the plaintiff's application and revoked the disposition, but again issued a new disposition in the same manner as the initial disposition is in violation of the principle of trust and good faith and the principle of prohibition against double Jeopardy. (2) Article 142 (1) 2 of the Enforcement Decree of the Act, which served as the basis of the disposition in this case, is null and void since there is no basis for delegation to the superior law. (3) According to the relevant Acts and subordinate statutes as to the business income of the real estate sales businessman, the calculated global income tax amount on the plaintiff's business income is calculated by multiplying the estimated income amount calculated by multiplying the standard income rate by the real estate sale price by the global income rate by the global income tax rate, although the defendant applied the said estimated income tax rate to the above estimated income. Thus, the defendant erred in the interpretation

(b) Relevant statutes;

Relevant Acts and subordinate statutes are as shown in attached Table 2.

C. Determination

(1) Judgment on the Plaintiff’s first assertion

If the tax authority revokes a disposition of revocation, the disposition of revocation shall become null and void only once it becomes null and void, and thus, the disposition of revocation shall become null and void only once it becomes final and conclusive. Thus, the tax authority cannot bring about the original disposition of revocation by its revocation. However, in order to impose a taxpayer with the same obligation to pay for the previous taxable object, the tax authority may impose a new disposition of imposition with the same content in accordance with the procedure for imposition prescribed by Acts again (see Supreme Court Decision 94Nu7027 delivered on March 10, 1995).

As to the instant case, the Defendant recognized that part of the disposition of April 1, 1997, which was issued by the Defendant, was revoked ex officio in the course of the request for review. However, the instant disposition is not to revoke ex officio revocation, but to revoke the said disposition again, although it is not a new disposition, it is the same as the previous disposition, and thus, the Plaintiff’s assertion of violation of the res judicata doctrine, premised on the revocation of the imposition

On the other hand, in general, in order to apply the principle of trust and good faith to the tax authority's acts in tax law relations, ① the tax authority must state the public opinion that is the object of trust to the taxpayer, ② the taxpayer has no reason attributable to the taxpayer for the trust that the tax authority's statement of opinion was justifiable, ③ the taxpayer must trust the statement of opinion and perform an act in which the taxpayer is in trust, ④ the tax authority's disposition contrary to the above statement of opinion should cause infringement on the taxpayer's interest by making the disposition contrary to the above statement of opinion (see Supreme Court Decision 96Nu11495 delivered on Nov. 28, 197). Even if the defendant revoked the initial imposition disposition made on April 1, 1997 and again revoked it, it cannot be said that the defendant expressed the public opinion that is the object of trust to the plaintiff, or that the plaintiff did any act in accordance with the above disposition. Therefore, the plaintiff's assertion that the disposition in this case is contrary to the principle of trust and good faith is without merit.

(2) Judgment on the second assertion by the Plaintiff

Where the Government determines profit margin or tax amount pursuant to Article 94(1) of the Act, the tax base and tax amount of global income tax shall be determined by the actual amount revealed by the method of a field investigation. Thus, the provisions of Article 142(1)1 of the Enforcement Decree only stipulate the contents derived from the interpretation of the provisions of Article 94 of the Act itself, and does not stipulate any matters concerning taxation requirements or procedures for imposition and collection. Article 142(1)2 of the Enforcement Decree merely provides the execution order necessary for the enforcement of Articles 94(1) and 120 of the Act when investigating the total income amount and tax base of a real estate sales businessman, since Article 142(1) of the Enforcement Decree merely has the nature of enforcement order necessary for the enforcement of Articles 94(1) and 120 of the Act, it cannot be deemed that the delegation of this Act cannot be deemed null and void as there is no delegation of this Act (see Supreme Court Decision 95Nu978, Jul. 8, 1997).

(3) Judgment on the third assertion by the Plaintiff

(A) Legal interpretation that is a premise for judgment

1) Separate taxation of global income, capital gains, etc.

A) Principles

In principle, income tax shall be levied on global income calculated by adding all incomes of the person liable for tax payment, but exceptionally a certain type of income such as capital gains (Article 4(1)2 of the Act) is not added to global income, but is subject to separate taxation at a separate tax base and tax rate (Article 4(1) of the Act).

B) the tax base and rate of global income tax

The tax base of global income tax is, in principle, calculated by the field investigation method (Article 118 of the Act), and in exceptional cases, it is allowed to be calculated by the estimation investigation decision (Article 120 of the Act). The tax base is 50% [the tax base is as provided in Article 70 (1) of the former Income Tax Act (amended by Act No. 4661 of Dec. 31, 1993).]

C) Tax base and tax rate of capital gains tax

In order to calculate the tax base of capital gains tax, the standard market price is calculated (the main sentence of Article 23 (4) 1 and Article 45 (1) 1 of the Act) (the main sentence of Article 23 (4) 1 of the Act and the main sentence of Article 45 (1) 1 of the Act), and exceptionally, it is calculated based on the actual transaction price (the actual transaction price at the time of transfer less necessary expenses, such as the actual transaction price at the time of acquisition) (the main sentence of Article 23 (4) 1 of the Act and Article 45 (1) 1 of the Act). The tax rate is 60% [the amount pursuant to the provisions of Article 70 of the former Income Tax Act (amended by Act No. 4661 of Dec. 31, 1993)] where the tax base is the amount of tax base of this case

In principle, in order to distinguish the method of calculating the transfer margin based on the standard market price from the method of transfer income tax applicable in calculating the global income tax on the real estate sales businessman, the pure transfer method is used.

2) Special case of calculation of global income tax on real estate sales businessmen

(A) adoption of comparative taxation methods;

According to the principle of global income tax assessment, the global income tax rate should be applied to the business income of a real estate sales businessman as in the case of other business income. However, the business income of a real estate sales businessman cannot be calculated by adding profit margin to the aggregate amount of global income, and applying the global income tax rate to this, where other taxpayers who are not a real estate sales businessman obtain the above profit margin, the application of the transfer income tax rate ( higher than the general global income tax rate) does not coincide with the application of the transfer income tax rate. Therefore, Article 82 of the Act provides for special cases for the real estate sales businessman, which is compared with the calculation method of global income tax (Article 82 subparag. 1 and 2 subparag. 1 of the Act) and the transfer income tax calculation method (Article 82 subparag. 1 and 2 subparag. 2 of the Act). The purpose of Article 82 of the Act is to ensure that the real estate sales businessman bears at least a certain amount of tax rate in accordance with the calculation method of the transfer income tax (see, e.g., Supreme Court Decision 2000Nu.

B) Calculation of tax pursuant to the calculation method of capital gains tax

(1) Standards for computing profit margins;

Principle

In principle, according to the actual transaction price after deducting necessary expenses from the sales price (Article 92 of the Act). In the event a real estate sales businessman does not make a provisional return of profit, voluntary payment, or makes a report, payment omission, or error, if profit margin can be calculated by books or documentary evidence, the profit margin should be determined on-site investigation (Article 94 of the Act, and Article 142(1)1 of the Enforcement Decree of the Act). Therefore, in the case of pure transfer method, in principle, the profit margin can be calculated based on the standard market price. In the case of real estate sales method, it can be criticized that the calculation based on the actual transaction price (which is larger than that based on the overall standard market price) goes against equity compared with other general taxpayers, and it seems that a taxpayer’s report and tax administration difficulty might have occurred (the comparative taxation method was repealed by Act No. 5031 on December 29, 195).

Sub-Section 2

In the absence of books and documentary evidence necessary for calculating the tax base, the estimated amount calculated by multiplying the sales price by the standard income ratio (Articles 94 and 120 of the Act, and Article 142(1)2 of the Enforcement Decree of the Act). Such estimation of income is applied not only to the calculation method of capital gains tax, but also to the case of the global income tax calculation method (the plaintiff also estimated his own business income according to this method and reported the income of this case).

C. Plaintiff’s assertion

For this reason, the Plaintiff should calculate profit margin based on the standard market price for the Plaintiff, a real estate broker, according to pure transfer tax method. In this case, it is impossible to calculate profit margin based on the standard market price in this case, so it is in accordance with the global income tax calculation method. However, this is against Articles 92, 94, and 120 of the Act, which provide for the calculation of profit margin for the real estate broker, and applying the pure transfer tax method to the real estate broker is limited to the case that is not business income.

(2) The interpretation theory under Article 82 (2) 2 of the Act.

(1) The interpretation of this Court

Of the language and text of Article 82(2)2 of the Act stipulating the calculation method of capital gains tax, the tax amount calculated under Article 92(2) is the amount calculated by multiplying the profit margin on real estate sales businessman by the tax rates provided for in each subparagraph of Article 70(3) if there was no language and text of Article 92(2) of the Act. However, since there is a language and text of the amount calculated by multiplying the profit margin on real estate sales businessman by the tax rates provided for in each subparagraph of Article 70(3) of the Act, Article 92(2) of the Act provides the corresponding part of Article 92(2) of the Act in the legislative technology in order to avoid duplication, it is all included in the calculation method, whether it is calculated by the estimation method, or not. Therefore, in applying Article 82, the portion of Article 92(2) in the application of Article 92(1) of the Act shall be presumed to be without merit (Article 92(1) of the Act in light of the substance of the Act).

(B) Interpretation of the lower court

On the contrary, the court below interpreted that Article 92 (2) of the Act should be applied to the calculation of the calculated global income tax pursuant to Article 82 (2) 2 of the Act, and since the above provision is to calculate the amount of tax by multiplying the actual trading profit after deducting necessary expenses, etc. from the actual transfer value by the transfer income tax rate, the above provision applies only to cases where the actual transaction value can be known, and it is not applicable to the calculation of the profit margin by the estimation method. This error of interpretation of

(B) Calculation of the Plaintiff’s global income tax amount

In this case, when calculating the Plaintiff’s global income tax amount, the Plaintiff’s global income tax amount is calculated based on the calculation method of global income tax: (a) KRW 82,262,937, such as the calculated tax amount in the calculation method of global income tax; (b) KRW 109,953,555, such as the calculated tax amount in the calculation method of global income tax; and (c) KRW 109,953,555, such as the calculated tax amount in the calculation method of global income tax; and (d) the amount of final tax to be imposed on the Plaintiff according to the calculation method of global income tax should be determined as global income tax amount; and (e) the amount exceeding KRW 31,795,620 in the calculation method of global income tax in the above legitimate tax amount column should be revoked; and (e) the amount exceeding KRW 31,795,620 in the calculation method of global income tax amount should be revoked by the Defendant’s imposition method of global income tax amount; and

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court below is partially unfair, the plaintiff's appeal is partially accepted and the judgment of the court below is modified as above. It is so decided as per Disposition by the application of Article 8 (2) of the Administrative Litigation Act and the proviso of Article 92 of the Civil Procedure Act to the burden of litigation costs.

October 22, 1999