Suwon District Court 2014Gudan2786 (02.04)

early 2014 1323 ( October 12, 2014)

The period of application of additional tax related to preliminary return of capital gains tax and the commencement date of such additional tax

On January 1, 2010, when integrating the fact that Article 47-5 of the Framework Act on National Taxes is amended to impose an additional tax when failing to fulfill the obligation of preliminary return following the abolition of tax credit for transfer income tax base in order to secure the performance of the obligation of preliminary return following the abolition of tax credit for preliminary return and payment, there is no error of disposition imposed by the disposition agency

Article 47-5 of the Framework Act on National Taxes

2015Nu37589 Revocation of Disposition of Imposing capital gains tax

- Appellants

Ma-○

Head of Pyeongtaek Tax Office

Suwon District Court Decision 2014Gudan2786 Decided February 4, 2015

June 30, 2015

August 18, 2015

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked, and the transfer income tax reverted to the Plaintiff on January 13, 2014 that the Defendant rendered to the Plaintiff on January 13, 2014

The judgment that the imposition of KRW 3,035,30 is revoked.

1. Details of the disposition;

The following facts do not conflict between the parties, or each entry in Gap evidence 4, 5, and 1

the entire pleadings may be accepted by adding to the purport of the entire pleadings.

가. 원고가 2011. 6. 30. 서울 ★★구 ★★로 8길 8 건물 249.89㎡를 양도하였으나,

December 31, 2013 by which no preliminary and final return on capital gains tax was filed;

After-report, 50,725,040 won was paid.

B. The Defendant reported and paid the transfer income tax for the year 201 after the deadline and filed a final return.

For the period from June 1, 2012 to December 31, 2012, the day following the due date, the due date for which payment is not made.

On September 1, 2011 to May 31, 2012, the day following the scheduled return deadline, with the calculation of the estimated tax.

The additional additional payment for the period of the land shall be calculated on January 13, 2014 for the plaintiff on January 13, 2011.

The disposition of imposition of capital gains tax of KRW 3,035,30 (additionally paid) (hereinafter referred to as the "disposition of this case").

(1) The term "the Corporation" means the Corporation.

C. The Plaintiff filed a request with the Tax Tribunal for a tax trial on February 21, 2014, but the said request was rejected on May 12, 2014.

was received.

2. Whether the instant disposition is lawful

A. The purport of the plaintiff's assertion

The plaintiff, effective at the time of transfer, was amended by Act No. 9911 of January 1, 2010.

in the case of failure to pay a preliminary return, there was no provision on the imposition of a penalty tax.

Therefore, the instant disposition, which was made on different premise, asserts that it is unlawful.

B. Relevant statutes

director of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010)

Article 47-5 (Penalty Taxes for Indecent Payment and Refunding Return)

(1) Any tax that a taxpayer fails to pay national taxes by the payment deadline under tax-related Acts or is liable to pay.

If the amount is below the amount, the amount calculated by applying the following formula shall be added to or refundable:

B shall be deducted from the amount of tax: Provided, That the stamp tax not paid or paid pursuant to Article 8 (1) of the Stamp Tax Act;

If the tax amount is short of the payable tax amount, the unpaid or insufficient tax amount;

30/100 shall be added to the payable tax amount or deducted from the refundable tax amount. The unpaid tax amount or the parts thereof shall be deducted.

The sufficient amount of tax ¡¿ the period from the date following the payment deadline to the date of voluntary payment or payment notice ¡¿ the financial company, etc. overdue;

The interest rate prescribed by Presidential Decree, considering the interest rate applied to the withdrawals, etc.

(5) In applying paragraphs (1) and (2), in any of the following cases, the final tax return and payment shall be made:

No penalty tax (limited to the portion on which penalty tax is imposed in relation to the payment by preliminary return) shall be imposed.

1. Where an additional tax is imposed in connection with the provisional return and payment of gain accruing from land, etc. under Article 69 of the Income Tax Act

2. Where an additional tax is levied in connection with the scheduled return and payment under Article 106 of the Income Tax Act;

3. Where an additional tax is levied in connection with preliminary return and payment under Article 18 of the Value-Added Tax Act;

The Addenda Article 9911 (No. 9911), and Article 99 (1)

Article 1 (Enforcement Date) This Act shall enter into force on January 1, 2010: Provided, That the amended provisions of Articles 81-8 through 81-11 shall apply.

prescribed shall enter into force on April 1, 2010, and the amended provisions of subparagraph 1 of Article 2, Article 21 (1) 8 and subparagraph 6 of Article 52 shall enter into force on and after April 1, 201

The Act No. 9346 shall enter into force on the date of enforcement of the Act.

Article 5 (Application of Additional Taxes) The amended provisions of Articles 47-2 (6) and 47-5 (5) shall be the first time after this Act enters into force.

From the date of sale or transfer, this shall apply.

director of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 201)

Article 47-4 (Additional Tax for Insincere Payment and Refunding Return)

(1) A person liable for tax payment (joint and several taxpayers, secondary person liable for tax payment or guarantor created on behalf of a taxpayer.

(b) the payment of national taxes (including interim prepayment, preliminary return payment, interim return and payment) by the due date under tax-related Acts;

(c) has not paid or has paid less than that to be paid (hereinafter referred to as "underpaid") or has been refunded;

Where a refund is made in excess of the amount of tax payable (hereinafter referred to as "excess refund"), the aggregate of the following amounts shall be added:

Tax shall be reduced: Provided, That where the stamp tax under Article 8 (1) of the Stamp Tax Act has not been paid or has been paid insufficiently;

unpaid tax or underpaid tax (referring to the amount short of the payable amount; hereinafter the same shall apply)

The amount equivalent to 300/100 of the amount shall be the additional tax.

1. The amount of unpaid tax or underpaid tax (the equivalent to the interest to be paid in addition to the amount of tax under tax-related Acts);

If there is any estimated amount, such amount shall be added) ¡¿ Voluntary payment date or duty payment notice from the day following the payment deadline to the date of voluntary payment

The period of overdue loans 】 the interest rate applied by financial companies, etc. to overdue loans prescribed by Presidential Decree.

Interest Rate

(5) In applying paragraph (1), an additional tax under paragraph (1) in connection with interim prepayment, preliminary return and payment, and interim return and payment.

No penalty tax under paragraph (1) shall be imposed on the imposed portion in connection with the final tax return and payment.

Addenda No. 11124, Dec. 31, 2011

Article 1 (Enforcement Date) This Act shall enter into force on January 1, 2012: Provided, That Articles 84-2 (1) 1, 85-5 (1) and (3) shall apply.

The amended provisions of subparagraph 3, paragraphs 2 and 5 of the same Article shall enter into force on July 1, 2012.

Article 5 (Application Cases of Additional Taxes, etc. for Non-Filing)

(1) Income tax (limited to income tax on global income), among the amended provisions of Articles 47-2 through 47-4, shall be applicable only, and such income shall be applicable.

The special rural development tax whose principal tax is the tax shall be included) and corporate tax (including the amount of corporate tax on income for each business year, land, etc.

The amended regulations concerning the corporate tax on Do income shall be applicable only to the corporate tax, and including the special tax for rural development whose principal tax is the corporate tax).

The schedule shall begin to apply from the first taxable period that commences after January 1, 2012.

(2) Income tax (income tax) on retirement income and capital gains from transfer under the amended provisions of Articles 47-2 through 47-4.

Provisions on amendments to special rural development tax that shall be principal tax shall include the amount of retirement or quantity for the first time after January 1, 2012

Do shall apply from the Do.

(1) The former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same shall apply)

Article 105 (Preliminary Return on Tax Base of Transfer Income)

(1) A resident who transfers assets prescribed in the subparagraphs of Article 94 (1) shall be subject to the imposition of capital gains tax calculated pursuant to Article 92 (2).

Standards shall be newly established to the head of the tax office having jurisdiction over the place of tax payment during the following periods:

section 23.

1. Where assets under Article 94 (1) 1, 2 and 4 are transferred, the last day of the month in which the date of transfer falls;

ter two months: Provided, That permission for a land transaction contract under Article 117 (1) of the National Land Planning and Utilization Act;

Where a price is settled before obtaining permission for a land transaction contract when land in a district is transferred, the date of such permission;

shall be two months from the last day of the month.

2. Two persons from the last date of the quarter in which the transfer date belongs in cases of transfer of assets under any item of Article 94 (1) 3.

C.

(2) A preliminary return of the tax base of capital gains under paragraph (1) shall be filed.

§ 106. Preliminary return and payment

(1) When a resident files a preliminary return, the Restriction of Special Taxation Act or the same shall be applied to the calculated tax under Article 107.

A tax office having jurisdiction over the place of tax payment or the Bank of Korea, as prescribed by Presidential Decree, an amount remaining after deducting a tax amount

It shall be paid to a post office or post office.

(2) The payment under paragraph (1) shall be made by preliminary return.

Addenda Article 9897, No. 9897, Dec. 31, 2009>

This Act shall enter into force on January 1, 2010. The proviso to this Act shall be omitted.

Article 2 (General Application) (1) This Act shall apply to the first income accruing after this Act enters into force.

(2) The amended provisions of this Act concerning capital gains shall apply to the first transfer after the enforcement of this Act. The end of this Act.

C. Determination

1) Article 47-5(1) and (5) of the former Framework Act on National Taxes and Article 47-5(1) and (5) thereof before oral pleadings are made

Further to the purport of the body, in light of the amended grounds of Article 47-5 of the former Framework Act on National Taxes

Additional tax shall be imposed when the transfer income tax fails to pay for preliminary return in order to induce the obligation to pay;

The content of the amendment to Article 47-5 of the former Framework Act on National Taxes is transferred after January 1, 2010.

(2) The interim prepayment, preliminary return payment, and interim return of the nature of interim settlement

In order to clarify the application of the penalty tax in the event that the payment obligation is not fulfilled in bad faith

Articles 47-2 through 47-4 of the Framework Act on National Taxes (Amended by Act No. 11124, Dec. 31, 201)

It is known that the amendment made it to be applied from the transfer after January 1, 2012.

2) Therefore, the Plaintiff is scheduled pursuant to Articles 105 and 106 of the former Income Tax Act, effective at the time of transfer.

Article 47-5 of the former Framework Act on National Taxes has failed to comply with the obligation to report and pay.

this case’s disposition based on this is lawful and on this different premise’s assertion is acceptable.

(2) the Corporation.

3. Conclusion

If so, the plaintiff's claim shall be dismissed, and the judgment of the court of first instance shall be justified in accordance with this conclusion.

Therefore, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.