Appellate Decision 201J 1772 ( November 22, 2011)

The decision of the Tax Tribunal shall bind the defendant and correct the comprehensive income tax according to the decision.

As the Tax Tribunal deems that the plaintiffs' business income amount is reasonable, the defendant shall be bound to correct the tax base and tax amount by estimation according to the simple expense rate, and the plaintiffs' comprehensive income tax shall be corrected according to the above determination.

2011Guhap6593 global income and revocation of disposition

Max 1 other

Head of Suwon Tax Office

June 14, 2012

July 5, 2012

1. On February 7, 2011, the Defendant’s imposition of global income tax exceeding KRW 000 in the imposition of global income tax of KRW 000 on February 7, 201 against Plaintiff Jeong-A, and the imposition of global income tax of KRW 000 in the imposition of global income tax of KRW 00 in the imposition of global income tax for the year 2008, respectively, shall be revoked.

2. The plaintiffs' remaining claims are dismissed.

3. Of the costs of lawsuit, 10% is borne by the Plaintiffs, and 90% is borne by the Defendant, respectively.

The Defendant’s imposition of global income tax of KRW 000 on February 7, 2011 and the imposition of global income tax of KRW 000 on the Plaintiff NewCC is revoked.

1. Details of the disposition;

A. On November 29, 2007, the plaintiffs opened a real estate sales business in kind with the trade name of ' XX industry' by investing in kind the land from 64-1 and 11 lots of land outside 64-11 lots of land (hereinafter referred to as the "land of this case") and then created a site for factory land, etc. on the land of this case.

B. The Plaintiffs, while carrying out the construction project for building lots, sold 7,962 square meters among the instant land to UDR; on March 21, 2008, 2008, 5,333 square meters among the instant land to OO Co., Ltd. on July 21, 2008, 4,220.7 square meters among the instant land to EE, respectively.

C. At the time of global income tax return in 2008, the Plaintiffs calculated the estimated income amount at KRW 000 according to the simple expense rate of real estate sales business and paid the relevant income tax.

D. After conducting an investigation upon the plaintiffs, the defendant considered part of the land in this case as non-business land when calculating the amount of income according to the method of the on-site investigation by confirming the actual revenue amount other than the land sold by the XX industry and the necessary expenses corresponding thereto, and assessed the amount of income pursuant to the method of the on-site investigation. The defendant imposed the total income tax of KRW 00 and KRW 000 on the plaintiff Jeong F (hereinafter referred to as the "the disposition in this case") on February 7, 2011. The plaintiffs appealed and filed an appeal with the Tax Tribunal. On February 21, 2011, the Tax Tribunal decided on February 10, 201 that the defendant imposed the global income tax of KRW 00 and KRW 000 of the global income tax of KRW 200 on the plaintiff Shin on February 10, 2008 and the imposition disposition of KRW 000 on the plaintiff NewCC on the basis that the plaintiff's business income was estimated by the simple expense rate, and corrected the standard and tax amount.

F. After the above judgment, the Defendant corrected the Plaintiffs’ comprehensive income tax. The Plaintiffs’ land transferred to EE constitutes land for non-business, and thus, the amount of income under the simple expense rate cannot be calculated, applying the relevant provisions of the Income Tax Act, and the Plaintiff’s comprehensive income tax was corrected to KRW 000,000, respectively.

[In the absence of dispute against the basis of recognition, the entry of Gap 1 1 2, Gap 2, Gap 1 1 through 4, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiffs' assertion

Since the decision of the Tax Tribunal is bound by the defendant, the defendant must take a disposition in accordance with the purport of the decision of the Tax Tribunal on the part that the plaintiffs transferred to EE, unlike the decision of the Tax Tribunal, by calculating the comprehensive income tax by a method other than simple expense rate. The disposition of this case is unlawful.

2) The defendant's assertion

The debate that the plaintiffs transferred to E is considered as the non-business round, and in the case of land for non-business use, the profit margin cannot be calculated as a simple expense rate according to the relevant provisions. The instant disposition is legitimate in accordance with the relevant provisions.

B. Relevant statutes

【National Tax Basic Act

Article 80 (Effect of Decision)

(1) The decision under Article 65 as applied mutatis mutandis in Article 81 shall bind the administrative agencies concerned.

(2) When a decision is made on a request for adjudgment, the administrative agency at sea shall take necessary measures without delay according to the purport of the decision.

Article 81 (Mutatis Mutandis Application of Provisions Governing Requests for Examination)

Articles 61 (3) and (4), 63, 65 and 65-2 shall apply mutatis mutandis to any request for adjudgment. In such cases, "period within 20 days" in Article 63 (1) shall be deemed "reasonable period".

Article 65 (Decisions)

(1) Decisions on a request for examination shall be made pursuant to the following subparagraphs:

3.If the request for review is deemed reasonable, a decision to cancel or correct the disposition against which the request is made, or a decision on the necessary disposition.

C. Determination

According to Articles 80 and 65 of the Framework Act on National Taxes, where the Tax Tribunal determines a necessary disposition due to the grounds for a request for adjudgment, such decision shall bind the relevant administrative agencies, and the administrative agencies shall immediately take necessary measures according to the purport of the decision.

On the other hand, the fact that the Tax Tribunal recognized that the plaintiffs' business income was reasonable and determined by estimation pursuant to the simple expense rate and made a decision to correct the tax base and tax amount, as seen earlier, the defendant is bound by such determination, and the comprehensive income tax of the plaintiffs must be corrected according to the above determination. Therefore, on the premise that the land transferred to EE, unlike the above determination, falls under the land for non-business use and this part is not calculated by the estimation method pursuant to the simple expense rate, the portion exceeding 00 won, which is the global income tax calculated by the estimation method pursuant to the simple expense rate among the global income tax of the plaintiffs Jung-A, which was imposed by the defendant on the premise that it cannot be calculated by the estimation method pursuant to the simple expense rate, and that the portion exceeding the global income tax calculated by the estimation method pursuant to the simplified expense rate

3. Conclusion

Thus, the plaintiffs' claims are justified within the above scope of recognition, and each part of them is accepted.