Whether a loss brought forward is deducted

In calculating the global income tax base for a real estate dealer, whether a loss carried forward should be deducted from the amount of income;

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

In calculating the global income tax base for a real estate dealer, whether a loss carried forward should be deducted from the amount of income;

The purpose of Article 58 (1) and (2) of the Income Tax Act (amended by Act No. 4019 of Dec. 26, 198) and Article 113 (1) through (3) of the Enforcement Decree of the same Act is to take policy consideration of the increase in the amount of tax due to the classification of office income or capital gains on the transfer of real estate. In addition, in calculating profit profits accruing from the sale and purchase of land, if there is a balance remaining after adding it to the calculation of income amount of the corresponding year and the calculation of tax base of the corresponding global income in the order of Article 113 (2) of the Enforcement Decree of the Income Tax Act, if there is a balance remaining after deducting it from the amount of income by income in the corresponding year, it shall be carried forward and provide it to each of the corresponding global income or forest income in the subsequent year. Article 82 of the Income Tax Act of the next year provides that even if the method of calculating the amount of tax differs, it shall not be treated differently as to whether the amount of tax should be deducted from the amount of income in question.

Article 58 of the Income Tax Act, Articles 82 and 92 of the same Act, Articles 113 and 141 of the Enforcement Decree of the same Act, and the General Rules 3-17-2 of the same Act.

The disposition of imposition of KRW 18,452,290 and the defense tax amount of KRW 3,690,450, which the defendant imposed against the plaintiff on August 2, 1989 shall be revoked. The costs of the lawsuit shall be borne by the defendant.

1. 원고가 1984.11.26.경 서울 ㅇㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 대지 300평 지상에 상가 및 사무실 건물 연건평 6,931.87평미터를 신축하고 그 이후로 위 건물 내의 상가 또는 사무실을 분양 또는 임대하여 부동산매매업 및 임대업을 영위하여 온 사실, 피고는 1989.8.2.원고의 1987년도분 종합소득금액을 조사함에 있어 그 해의 부동산매출액이 금 56,866,565원이고 매출원가는 금 18,129,283원으로서 금 38,742,282원의 매매차익이 발생한 것으로 인정하고, 한편 원고가 1985년에 부동산매매업에서 금 48,585,127원, 부동산 임대분야에서 금 34,322,666원의 결손금을 내는 등 1985년과 1986년에 누적된 이월결손금이 금 148,201,497원인 사실을 인정하면서도, 위 이월결손금을 위 1987년 사업소득액에서 공제하지 아니하고 위 1987년 부동산매매업으로 인한 사업소득 금 38,742,282원을 종합소득 과세표준으로 하여 이에 소득세법 제92조 제2항 소정의 세율을 적용하여 산출한 1987년 귀속분 종합소득세 금 18,452,290원 및 방위세 금 3,690,450원을 원고에게 부과고지한 사실은 당사자 사이에 다툼이 없다.

2. In calculating the profit margin of a real estate sales businessman, the Defendant asserts that the disposition of this case is lawful, even if there is a loss carried forward incurred from real estate sales business in the application of Article 92(1) of the Income Tax Act and Article 141(1) of the Enforcement Decree of the same Act, and Article 82(1) and (2) of the Income Tax Act and Article 67(1) and (2) of the Enforcement Decree of the same Act, which are the special provisions for calculating the amount of global income tax to the real estate sales businessman, the disposition of this case is not subject to deduction from the profit margin from real estate sales, and thus, the disposition of this case is made lawful. Accordingly, under Article 58 of the Income Tax Act and Article 113 of the Enforcement Decree of the same Act, the Plaintiff has a loss carried forward deducted in calculating the amount of income for each income of the following year. Accordingly, if the loss incurred from real estate sales business was deducted from the amount of global income in 1985, the tax base of global income tax in 1987 does not comply with the above provisions.

Article 58 (1) of the Income Tax Act provides that any deficit accruing to each type of income in the calculation of the income amount by type of income kept by the businessman. In the calculation of the income amount by type of income in the current year, such deficit shall be applied, and that it shall be included in the calculation of the global income amount by type of income under paragraph (1), and that under paragraph (2) (before amendment, December 26, 198) such deficit amount by type of income under paragraph (1) that has not been deducted in the calculation of the income amount by type of income in the current year under the conditions as prescribed by the Presidential Decree, the deficit amount not deducted in the calculation of the income amount by type of income in the current year shall be deducted. Article 113 (1) of the Enforcement Decree of the Income Tax Act provides that any deficit amount under Article 58 (1) of the Act means the deficit amount which the Government examines and determines pursuant to the provisions of Article 118 and 119 of the Act shall be deducted from the global income amount by type of income in the current year.

Meanwhile, Article 82 of the Income Tax Act provides for special cases concerning the calculation of global income tax on real estate sales brokers: (1) where there is no other global income other than business income generated from the sale and purchase of land under paragraph (1), the calculated tax amount under Article 70 of the Income Tax Act and the calculated tax amount under Article 92 (2) of the Income Tax Act provide for the calculation of global income tax in cases where there are other global income than business income generated from the sale and purchase of land, etc.; (2) Article 67 of the Enforcement Decree of the Income Tax Act provides for the calculation of tax amount by the same method as those delegated under Article 134 (2) of the Enforcement Decree of the Income Tax Act. Article 92 (1) of the Income Tax Act provides for the calculation method of global income tax under Article 70 of the above Act and provides for the calculation method of global income tax under Article 92 (2) of the Enforcement Decree of the Income Tax Act to ensure that there is no difference between the profit margin method and the amount carried forward losses carried forward under Article 92 (1) and (2) of the same Act.

3. Thus, the disposition of this case on the premise that the Plaintiff did not deduct KRW 48,585,127 of the Plaintiff’s loss in real estate sales in 1985 from KRW 38,742,282 of the income amount for real estate sales in 1987 and the Plaintiff had a global income tax and defense tax amount to be paid to the Plaintiff should be revoked in its entirety. Thus, the Plaintiff’s claim seeking revocation of the above disposition of this case shall be accepted as a reasonable ground, and the costs of lawsuit shall be borne by the Defendant who lost.