Whether a disposition imposing capital gains tax may be deemed to have been revoked in cases where a tax payment notice is imposed and notified after deducting the amount equivalent to the capital gains tax already paid in global income when making the detailed and disposition (affirmative)

If a disposition imposing capital gains tax is revoked, it is sufficient to revoke such disposition in a way that can objectively revoke such disposition without requiring a special form, and if a tax authority imposed capital gains tax but imposed a new disposition premised on the revocation of such disposition, barring any special circumstance, it shall be deemed that the initial disposition was revoked, barring any special circumstance. Therefore, if a tax authority imposed and notified capital gains tax after deducting an amount equivalent to the capital gains tax already paid by a taxpayer and enters the deduction in a tax notice after deducting the amount of such deduction from the amount equivalent to the capital gains tax already paid by a taxpayer in the course of real estate sales business, it is reasonable to deem that the disposition imposing capital gains tax was revoked based on the above tax notice, and even though the tax authority did not deduct the amount equivalent to the national refund on capital gains tax to be paid to a taxpayer by the revocation of the initial disposition imposing capital gains tax

Article 9 of the National Tax Collection Act and Article 51(2) of the former Framework Act on National Taxes (Amended by Act No. 5198, Dec. 30, 1996)

Supreme Court Decision 82Nu399 delivered on December 14, 1982 (Gong1983, 297) Supreme Court Decision 95Nu8119 delivered on October 15, 1996 (Gong1996Ha, 3447) Supreme Court Decision 96Nu15725 delivered on April 8, 1997 (Gong197Sang, 1484 delivered on June 27, 1997)

Plaintiff (Law Firm Gwangju, Attorneys Kim Tae-ho et al., Counsel for the plaintiff-appellant)

The head of Yangcheon Tax Office

Seoul High Court Decision 94Gu7166 delivered on October 11, 1995

The judgment below is reversed and the case is remanded to Seoul High Court.

As to the Grounds of Appeal

According to the reasoning of the judgment below, as for the Plaintiff’s transfer of each of the instant land between August 23, 1989 and September 20 of the same year, and the scheduled return of transfer margin, paid KRW 24,589,104 of transfer income tax and KRW 4,917,820 of the defense tax, the lower court determined that the Defendant imposed and notified the Plaintiff of KRW 913,337 of the transfer income tax and KRW 182,68 of the defense tax, which should be additionally paid to the Plaintiff on July 6, 1990, the transfer of each of the instant land was made as part of the real estate trade, and the income therefrom was ultimately made as part of the global income tax, and thus, it is difficult to view that the Plaintiff’s separate business income acquired as the Plaintiff’s household manufacturer in that year and the income from the transfer of each of the instant land should be deducted from the global income tax imposition amount to the global income tax imposition amount of KRW 4,209,206 and KRW 4746.

If the disposition of imposition of capital gains tax is revoked, it is sufficient to revoke the disposition in such a way that it can objectively revoke the disposition without requiring any specific form, as it is not provided for in the Framework Act on National Taxes and the Income Tax Act. If the tax authority imposed capital gains tax after the disposition, and then makes a new disposition premised on the revocation of the disposition, it shall be deemed that the initial disposition was revoked (see, e.g., Supreme Court Decisions 82Nu399, Dec. 14, 1982; 95Nu8119, Oct. 15, 196).

As determined by the court below, if the defendant imposed the comprehensive income tax on the plaintiff after deducting the amount equivalent to the transfer income tax already paid by the plaintiff and entered the deduction in the tax payment notice, it is reasonable to view that the defendant's disposition of imposing the transfer income tax was revoked based on the above global income tax payment notice. Although the defendant did not deduct the amount equivalent to the additional refund on the refund of national taxes to be paid to the plaintiff by the decision to revoke the initial imposition of

Nevertheless, the court below held that the disposition of imposition of global income tax, etc. of this case was unlawful because it was difficult to cancel the original disposition of imposition of global income tax, etc. by deducting the already paid tax amount, such as transfer income tax, from the disposition of imposition of global income tax, etc. of this case. The court below erred in the misapprehension of legal principles as to the cancellation of disposition of imposition, which affected the conclusion of the judgment. The grounds for

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)