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 purport of Article 58(1) and (2) of the Income Tax Act (amended by Act No. 4019, Dec. 26, 198); Article 113(1) through (3) of the Enforcement Decree of the Income Tax Act (amended by Act No. 4019, Dec. 26, 198); where losses by income are deemed to have occurred as a result of actual investigation by books kept an income of a businessman; and where the amount of losses by income is deemed to have occurred as a result of the actual investigation by books kept, it shall be aggregated in calculating the income amount by income in the current year; where there is a balance after deducting the losses according to the order of Article 113(2) of the Enforcement Decree of the Income Tax Act, it shall be carried over to provide it from the amount of global income or forest income in the following year; and Article 82 of the Income Tax Act of the next year shall be separately classified as office income or transfer income with respect to the transfer of real estate; even if the method of calculating the amount of such losses carried forward is different, it shall not be treated as the above amount of losses carried forward.

Article 58 of the Income Tax Act, Articles 82 and 92 of the same Act, Articles 113, 141 of the Enforcement Decree of the same Act, and General Rule 3-17-2.58 of the same Act

Ba-hee

the director of the tax office

The disposition of imposition of KRW 18,452,290 and the defense tax of KRW 3,690,450 against the plaintiff on August 2, 1989 shall be revoked.

Litigation costs shall be borne by the defendant.

The same shall apply to the order.

1. Around November 26, 1984, the Plaintiff newly built a commercial building and office building 6,931.87 square meters on the ground of 14-30 square meters on the ground of Yeongdeungpo-do, Yeongdeungpo-gu, Seoul at 14-300, and thereafter engaged in real estate sales and lease business by selling or leasing commercial buildings or offices within the above building. In investigating the Plaintiff’s global income amount for the year 1987 of August 2, 1989, the Defendant recognized that the amount of real estate sales for the year was KRW 56,86,565, and the sales amount were KRW 18,129,283, and the amount was KRW 38,742,282, and the amount was KRW 282,000,000, KRW 297,000 and KRW 987,000 for global income for the year 198,000 and KRW 1987,000 for the above amount of net income for 1986.

2. The defendant asserts that the disposition of this case is legitimate, since there is a loss carried forward incurred in real estate sales business in the application of Article 92 (1) of the Income Tax Act, Article 141 (1) of the Enforcement Decree of the Income Tax Act, and Article 82 (1) and (2) of the Income Tax Act and Article 67 subparagraph 1 and 2 (b) of the Enforcement Decree of the Income Tax Act, which are special provisions for the calculation of global income tax on real estate sales businessmen, even if there is a loss carried forward incurred in real estate sales business, such loss carried forward is not deducted from the gains from real estate sales, and the tax base is determined. Accordingly, the plaintiff is entitled to deduct the loss carried forward in the calculation of the income amount of each income of the following year under Article 58 of the Income Tax Act and Article 113 of the Enforcement Decree of the Income Tax Act. Under the above provisions, the disposition of this case is unlawful even if the amount of the loss carried forward is deducted from the global income amount in 1985.

1. The provisions of Article 58 (1) of the Income Tax Act provides that any losses accruing from each type of income in the calculation of the income amount by type of the business. The provisions of paragraph (2) (before amendment on December 26, 198) shall be applicable to the calculation of the global income amount by type of the income, and those losses by type of the income under paragraph (1) which have not been deducted in the calculation of the income amount by type of the income in the current year under the conditions as prescribed by the Presidential Decree. The provisions of Article 113 (1) of the Enforcement Decree of the same Act provide that any losses carried forward shall be deducted in the calculation of the income amount by type of the income in the current year. The provisions of Article 58 (2) of the Act provide that any losses carried forward from the global income amount in the current year shall be deducted in the order of the total income amount by category of the business 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) calculated tax amount under Article 70 of the Income Tax Act and (2) calculated global income tax amount under Article 92-2 of the Income Tax Act shall be the global income tax amount. (2) Article 67 of the Enforcement Decree of the same Act provides for the calculation of tax amount by the same method as those of paragraph (1) of the case where there are other global income other than business income from sale and purchase of land. Article 67 of the Enforcement Decree of the same Act provides for the calculation method of global income under subparagraphs 1 and 2 of the above Article 70 of the Enforcement Decree, which provides for the calculation method of global income tax under subparagraphs 1 and 2 of the above Article 92 of the Income Tax Act, and it does not include profit margin on the transfer of real estate in accordance with Article 92-1 of the Income Tax Act, which is no different from the calculation method of global income tax amount under Article 92-1 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.

Judges Jeong Jong-ho (Presiding Judge)