Initial date of exclusion period of the right to impose income tax on resident tax to be imposed (=the time income tax liability becomes final)

Since Article 172 subparagraph 3 of the former Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994) does not have any express provision concerning the time when the income tax to be imposed is established, its establishment date shall be determined by the interpretation of other individual provisions concerning it. However, Article 172 subparagraph 3 of the same Act defines the resident tax to be imposed as the income tax as the tax base on which the income tax is imposed by the provisions of the Income Tax Act. Article 178 of the same Act provides that the tax base of the resident tax to be imposed shall be calculated on the basis of the total amount of the income tax imposed by the income tax under the Income Tax Act. In addition, since Article 130-7 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 1481 of Dec. 31, 1994) provides that the income tax amount determined by the Income Tax Act is, in principle, determined by the income tax liability to pay income tax, its establishment period shall be determined by the tax base of the resident tax.

Articles 30-2 (see current Article 30-4), 172, 178, and 179-4 of the former Local Tax Act (amended by Act No. 4794, Dec. 22, 1994); Article 130-7 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14481, Dec. 31, 1994)

Supreme Court Decision 81Nu99 delivered on March 27, 1984 (Gong1984, 821) Supreme Court Decision 96Nu19468 delivered on March 10, 1998

Plaintiff

The head of Seongbuk-gu Seoul Metropolitan Government

Seoul High Court Decision 97Gu37786 delivered on May 27, 1998

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below acknowledged that the plaintiff transferred the real estate of this case to the head of Sungbuk District Tax Office on July 25, 1990 and paid the total amount of transfer income tax on September 31 of the same year and September 25 of the same year on two occasions, but the defendant received a notice of taxation data on the resident tax to be imposed on the amount of transfer income tax from the head of Sungbuk District Tax Office on June 1996 and received a notification of taxation data on the resident tax to be imposed on the plaintiff as of July 10 of the same year on the amount of transfer income tax as of July 10 of the same year, and then it can only be imposed on the plaintiff for the reason that the period from the day following the amendment of the Local Tax Act (amended by Act No. 4794 of Dec. 22, 1994; hereinafter referred to as "the period from the date of final return of transfer income tax after the amendment of the Local Tax Act"), which can only be imposed on the following 9-year period.

2. However, while Article 14-2 of the Enforcement Decree of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14481 of Dec. 31, 1994) stipulates that the date on which the local tax can be imposed shall be determined by Presidential Decree under the latter part of Article 30-4(1) of the former Local Tax Act (amended by Presidential Decree No. 14481 of Dec. 31, 1994), the former Local Tax Act does not provide for the exclusion period of five years for the right to impose the local tax under Article 30-2(1) of the former Local Tax Act (amended by Presidential Decree No. 1450 of Dec. 31, 1994).

However, since the former Local Tax Act does not have any express provision about the establishment time of the resident tax to be imposed, the establishment time of the local tax is bound to be determined by the interpretation of other individual provisions on it. However, Article 172 subparagraph 3 of the former Local Tax Act defines the resident tax to be imposed by the "Income Tax Act" as the tax base, and Article 178 provides that the tax base of the resident tax to be imposed by the "Income Tax Act" shall be calculated based on the total amount of the income tax imposed by the "Income Tax Act", while Article 130-7 (1) of the former Enforcement Decree of the Local Tax Act (amended by Presidential Decree No. 14481 of Dec. 31, 1994) provides that the income tax under Article 178 of the former Local Tax Act refers to the income tax determined by the Income Tax Act as a matter of principle. In light of the fact that Article 172 subparagraph 3 of the former Local Tax Act provides that the tax liability of the income tax shall also be determined by the provisions of the Income Tax Act, and its tax liability shall be established.

Therefore, the time when a resident tax liability to be imposed is determined under the Income Tax Act, and the transfer income tax is determined by the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) that applies to the transfer of the Plaintiff’s real estate. Thus, the resident tax to be imposed on the Plaintiff’s real estate transfer as the tax base of the transfer income tax is ultimately established only when a decision is made to determine a liability for payment of the transfer income tax (see Supreme Court Decision 81Nu99, Mar. 27, 1984). Therefore, the exclusion period of the right to impose the income tax should also be the initial date when the decision is made (see Supreme Court Decision 96Nu19468, Mar. 10, 198).

However, according to the records, there is room to view that the taxation authority's decision to impose capital gains tax on the transfer of the Plaintiff's real estate of this case was made on March 1996 (No. 1-2, No. 35 of the evidence No. 1-2, No. 35 of the record), and if the facts are true, the disposition of imposition of the resident tax to be imposed on July 10, 1996 may be deemed to have been made

Nevertheless, the court below deemed that the following day after the due date of the final return of the tax base of the transfer income tax becomes the date on which the resident tax to be imposed can be imposed, and thus the defendant's disposition of imposing the resident tax to be imposed on this case was made after the expiration of the exclusion period. Thus, it erred by misapprehending the legal principles on the exclusion period of the right to impose the resident tax to be imposed on the income tax, thereby affecting the conclusion of the judgment. The part

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

Justices Jeong Jong-ho (Presiding Justice)