Busan District Court 201Guhap6593 (2012.05)

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.

(1) If the Tax Tribunal finds that there are reasonable grounds for the appeal, and determines that the plaintiffs' business income amount should be estimated according to simple expense rate and correct the tax base and tax amount, the defendant shall be bound by the decision, and the comprehensive income tax of the plaintiffs shall be corrected according to the above decision.

Article 80 of the Income Tax Act shall be decided and corrected.

2012Nu2634 global income and revocation of disposition

The AAA et al.

○ Head of tax office

Busan District Court Decision 201Guhap6593 Decided July 5, 2012

May 15, 2013

June 19, 2013

1. The judgment of the first instance, including the plaintiffs' claims that have been changed in exchange at the trial, shall be modified as follows:

A. The Defendant’s global income tax for the year 2008 on February 7, 201, listed in the attached Form No. 2008 against the Plaintiff JeongA.

(This tax) The portion exceeding KRW 000 of the imposition of global income tax (additional tax) for the year 2008 as shown on February 1, 2013, and the portion exceeding KRW 000 of the imposition of global income tax (additional tax) for the Plaintiff NewB as stated on February 7, 2011 and the imposition of global income tax (additional tax) for the year 2008 as shown on February 1, 201, shall be revoked, respectively.

B. Each of the plaintiffs' remaining claims is dismissed.

2. 10% of the total litigation costs shall be borne by the Plaintiffs, and 90% by the Defendant.

1. Purport of claim

On February 7, 2011, the Defendant imposed global income tax (this tax) 000 won for the year 2008, and the global income tax (this tax) 0000 won for the year 2008 for the Plaintiff Company with respect to the Plaintiff Company AB, and the global income tax (additional tax) for the year 2008 for the Plaintiff Company AB on February 1, 2013, and the global income tax (additional tax) 000 won for the year 2008 for the Plaintiff Company BB and the global income tax (additional tax) for the year 2008 for the Plaintiff Company BB (the Plaintiff reduced the purport of the claim as to the portion of the principal tax on the island, and changed the claim as to the penalty tax in exchange).

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiffs' claims corresponding to the above revocation shall be revoked.

Each dismissal is dismissed.

1. Details of the disposition;

A. On November 2, 2007, the Plaintiffs decided to conduct a real estate sale business by creating and selling a site, such as a factory site, in the trade name of “CC industry” by investing in kind the land outside 000 and 17,772 square meters (hereinafter “instant land”) where the Plaintiffs independently or jointly owned the land, and the construction of a site, such as a factory site, was conducted on the instant land.

B. On February 12, 2008, the Plaintiffs (i) sold 7,962 square meters among the instant land to O, and (ii) sold 5,333 square meters among the instant land to OO on March 21, 2008, and (iii) on July 21, 2008, 4,220.7 square meters among the instant land (hereinafter “third-party transfer”).

C. When filing a 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 filed a global income tax return and paid the relevant income tax.

D. After investigating the Plaintiffs, the Defendant: (a) confirmed the actual import amount of the land sold by theCC industry and necessary expenses corresponding thereto; and (b) calculated the amount of income pursuant to the method of the on-site investigation, considered the third transferred land of the instant land as non-business land; and (c) on February 7, 2011, on February 7, 201, the Defendant imposed 00 won (in addition, 000 won) and 000 won (in addition, 000 won) on the Plaintiff’s newB.

E. The Plaintiffs appealed and tried to the Tax Tribunal, and the Tax Tribunal on 2011

11. 21. On February 10, 201, the Defendant rendered a decision that the imposition of global income tax of KRW 000 for the year 2008, which was made by Plaintiff AA on February 10, 201, and the imposition of KRW 000 for global income tax of KRW 200 for the year 2008, which was made to Plaintiff AB, shall be that the Plaintiff’s business income is estimated by simple expense, and the tax base and tax amount shall be corrected by

F. After the above judgment, the defendant corrected the plaintiffs' comprehensive income tax, and the third transferred land falls under the non-business land, and thus the amount of income cannot be calculated under the simple expense rate, applying the provisions of Article 64 (1) 2 of the Income Tax Act to the provisions of Article 64 (1) 2 of the Income Tax Act, the plaintiff's comprehensive income tax was 000 won (the additional tax is 000 won) and the comprehensive income tax of the plaintiff's newB was corrected to 000 won (the additional tax is 000 won).

G. On February 1, 2013, the Defendant revoked the imposition of additional tax of KRW 00,00, and additional tax of KRW 000,000 for the Plaintiff NewBB from the global income tax revised above, and on February 28, 2013, issued a revised disposition to impose additional tax of KRW 000,014, and KRW 26,710, and KRW 710 on the Plaintiff NewB.

H. On March 26, 2013, the Defendant: (a) calculated the acquisition value of the third transferred land as the standard market price at the time of its acquisition; (b) revised the Plaintiff’s comprehensive income tax of KRW 000 ( KRW 000 + penalty tax of KRW 000); and (c) the Plaintiff’s comprehensive income tax of KRW 000 ( KRW 000 + penalty tax of KRW 000); and (b) revised the Plaintiff’s comprehensive income tax of KRW 000; and (c) on February 7, 2011, the Plaintiffs were subject to the imposition of the principal tax on global income tax and the imposition of the penalty tax on global income tax on February 1, 2013.

[Grounds for Recognition] The respective 1 and 2 of Gap evidence 1 and 3, Eul evidence 1 to 4 of Eul evidence 1, Eul evidence 2, Eul evidence 9, 11 and 13, and evidence 14, 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 binding on the defendant, the defendant must take measures in accordance with the purport of the decision of the Tax Tribunal. Accordingly, the instant disposition that the defendant calculated and imposed the comprehensive income tax on the third transferred land in a way other than simple expense rate is unlawful. In addition, the defendant calculated the amount of the plaintiffs according to the field investigation method is unlawful in calculating the amount of the plaintiffs' income according to the field investigation method, so it is unlawful that the Tax Tribunal determines the amount of the plaintiffs' income by the simple expense rate, and it is unlawful in itself to calculate and correct the amount of the

2) The defendant's assertion

The third transferred land shall be deemed non-business land, and since there are profit margin on the third transferred land, the business income of the plaintiffs, and the defendant calculated the tax amount for the third transferred land, separate from the global income tax amount calculated by the plaintiff's business income under the simple expense rate pursuant to Article 64 (1) of the Income Tax Act, separately from the global income tax amount calculated by the plaintiff's business income under the simple expense rate pursuant to Article 64 (1) of the Income Tax Act, the tax amount calculated on the third transferred land was calculated as the tax amount for the third transferred land, and the plaintiff did not dispute the tax Tribunal's decision as to whether the third transferred land is non-business land or not, and the Tax Tribunal did not decide on it. Thus, the calculation of the tax amount for the third transferred land, separately from the global income tax amount calculated by the plaintiff's business income under the simple expense rate, by calculating the tax amount for the third transferred land as the tax amount for the third transferred land, is not contrary to its binding force.

B. Relevant statutes

Attached Form is as shown in the attached Form.

C. Determination

1) According to Article 80 and Article 65 of the Framework Act on National Taxes, where the Tax Tribunal has made a necessary disposition due to a reason for request for adjudgment, such decision shall bind the relevant administrative agencies, and the administrative agencies shall immediately make the necessary disposition in accordance with the purport of the decision. The facts that the Tax Tribunal made a decision to estimate the plaintiffs' business income pursuant to simple expense rate and to correct the tax base and tax amount by deeming that the Plaintiffs' request for adjudgment was reasonable, as seen earlier, and the facts that the Plaintiff’s request for adjudgment under Article 64 of the Income Tax Act is deemed to fall under the third transferred land in the proceeding of the Tax Tribunal, and that it is unreasonable for the Tax Tribunal to calculate the tax amount under Article 64 of the Income Tax Act by deeming that it falls under the third transferred land for non-business use (record 17 pages) and that it is reasonable for the Tax Tribunal to make a comprehensive calculation of the tax amount under Article 64 of the Income Tax Act by comparing it with the purport of Article 8 of the Framework Act on National Taxes, which is obviously clear in the purport of the order of the Tax Tribunal’s determination with the above and the purport of simple provision.

2) We examine whether the third transferred land is non-business land or not.

According to Article 104-3(2) of the Income Tax Act, Article 168-14(1)4 of the Enforcement Decree of the Income Tax Act, and Article 83-5(1)5 of the Enforcement Rule of the Income Tax Act, land for which construction has been commenced (in cases where the commencement date is unclear, it shall be based on the date on which a report on commencement of construction is submitted) in order to acquire land on the ground and use it for business shall not be deemed land for non-business during two years from the date of acquisition of the land concerned and the period during which construction is under way. Furthermore, according to the relevant established rules and regulations (corporate tax and 416), where substantial civil construction works have been commenced for non-business land at the time of determination of the non-business land, the time of construction may be deemed to be the date of commencement of construction. Considering that this case’s health, basic facts and evidence No. 2, and testimony of the witness at the trial, the Plaintiffs, as a whole, decided to sell the land for non-business purpose, including transfer and sale of the land.

3) Therefore, on the premise that the Defendant is different from the decision of the Tax Tribunal, and that the amount of the global income tax cannot be calculated by the estimation method under the simple expense rate with respect to the land transferred for the third transfer, the portion exceeding 000 won (including this tax and additional tax) calculated by the estimation method under the simple expense rate among the dispositions of this case against the Plaintiff JeongO, which was imposed by the Defendant under the premise that the global income tax cannot be calculated by the estimation method under the simple expense rate, and the portion exceeding 000 won (including this tax and additional tax) calculated by the estimation method under the simple expense rate among the dispositions of this case against the Plaintiff NewB related to the Plaintiff NewB, should be revoked, as it is unlawful.

3. Conclusion

Therefore, the plaintiffs' claims are justified within the above scope of recognition, and the remaining claims are dismissed due to lack of reason, and the judgment of the court of first instance, including the plaintiffs' claims that have been changed in exchange on the island, is modified as above (the part of the disposition of second instance as of February 7, 201, seeking the revocation of each disposition of imposition of additional tax, in the disposition of second instance as of February 7, 201, was withdrawn from the exchange of claims, and the judgment of the court of