Seoul Administrative Court 2013Gudan1351 ( October 25, 2013)

2013west614 (25 March 25, 2013)

Tax amount paid on the previous preliminary return following the extension of the limit of self-sufficiency shall be calculated again according to the payable tax amount.

According to Article 108 of the former Income Tax Act, the amount of tax credit for preliminary return is equivalent to 10/100 of the amount of tax to be paid, and the amount of tax to be paid is deducted from the amount of tax to be reduced or exempted under the Restriction of Special Taxation Act. Thus, the amount of tax to be paid for preliminary return applied by the previous return according to the expansion of the limit of tax reduction

Article 108 of the former Income Tax Act Tax Credit for Preliminary Return Payment

2013Nu51253 Revocation of disposition rejecting capital gains tax rectification

HadD

O Head of tax office

National Rotations

March 3, 2015

March 17, 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 defendant's rejection disposition of correction of KRW 10,000,000 for the transfer income tax belonging to the year 2008 against the plaintiff on July 2, 2012 is revoked.

1. Details of disposition;

The following facts do not conflict between the parties, or each of the evidence A, Nos. 1, 2, and 1, 2

may be recognized by adding the whole purport of the pleading to the statement.

A. The plaintiff is the same as OO-dong OO-dong 34-2 1,437 square meters and the same as O-dong 1,437 square meters, a self-farmland on January 14, 2008

On March 31, 2008, 103,674,000 won of capital gains tax was paid by transferring two parcels of land with 35-3 1,345 m2, and scheduled return and payment was made.

B. Based on Articles 69 and 133 of the former Restriction of Special Taxation Act (amended by Act No. 9272 of Dec. 26, 2008), the Plaintiff paid 103,674,000 capital gains tax calculated by deducting 11,519,00 won, which is equivalent to 10% of the tax amount payable as the tax amount payable for preliminary return pursuant to Article 108 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009; hereinafter the same), based on Article 108 of the former Restriction of Special Taxation Act (amended by Act No. 9272 of Dec. 26, 2008),

C. However, according to Article 133 of the former Restriction of Special Taxation Act, the limit of self-employed farmland reduction and exemption amount was increased to KRW 200 million, which was enforced from the date of its promulgation by Act No. 9272 of Dec. 26, 2008, and that Article 133 of the former Restriction of Special Taxation Act shall apply from the first transfer of farmland

D. Accordingly, on June 11, 2009, the Defendant determined that capital gains tax refunds of KRW 90 million and KRW 90 million from January 1, 2009 to June 11, 2009, based on Articles 51 and 52 of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 201; hereinafter the same shall apply), Article 30(2) of the Enforcement Rule of the same Act, Article 13-2 of the Enforcement Rule of the same Act, public notice of the Ministry of Strategy and Finance (interest rate applicable to the calculation of the additional refund of national taxes, interest rate applicable to the calculation of the additional refund of national taxes until April 30, 209; and from May 1, 2009 to 9.3/1000,000 per day) to refund money to the Plaintiff as follows.

Tax base 630,259, 215,193, 200,00 won of the calculated tax amount, 200,000 won of the self-owned farmland tax amount, 15,193,00 won of the payable tax amount, 15,193, tax credit for preliminary return and payment, 13,674, 103,674, 103,674, and 90,000 won of the tax amount

E. On May 31, 2012, the amendment of the former Restriction of Special Taxation Act was made to the Defendant on May 31, 2012

Inasmuch as the transfer income tax amount was refunded to KRW 90 million, not all increased from KRW 100,000 to KRW 200,000,000, even though the ceiling of the capital gains tax was increased from KRW 100,000,000, the Defendant filed an application for rectification to request a refund of KRW 10,000,000,000,000,000.

F. After that, the Plaintiff filed an appeal on January 23, 2013 after filing an objection on September 28, 2012, but was dismissed on March 25, 2013.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

If the Plaintiff files a preliminary return of capital gains tax, the amount of tax credit for preliminary return.

The amount of tax to be paid was KRW 11,519,00, which is 10% of 115,193,000 (based on the amount of tax reduction or exemption). However, as the amendment of the former Restriction of Special Taxation increases from KRW 100,000 to KRW 200,000, the disposition rejecting a claim for correction of the content of tax reduction or exemption is unlawful. The disposition of this case rejecting a claim for correction of the content of tax reduction or exemption by the Defendant’s refund of capital gains tax erroneously or erroneously paid by the Defendant is unlawful, by deducting only KRW 1,519,00,000, which is equivalent to 10% of the amount of tax to be newly calculated as the amount of tax credit for preliminary return, from KRW 15,193,00,000, which is the amount of tax to be paid. Accordingly, the Plaintiff’s additional refund of KRW 10,000,000.

B. Relevant statutes

/ former Restriction of Special Taxation Act (amended by Act No. 9272, Dec. 26, 2008)

Article 69 (Reduction or Exemption of Transfer Income Tax for Self-Cultivating Farmland)

(1) A resident prescribed by Presidential Decree who resides in the seat of farmland directly cultivates for at least eight years.

With respect to the income accruing from the transfer of land prescribed by Presidential Decree among land subject to the taxation of agricultural income tax, the tax amount equivalent to 100/100 of the capital gains tax shall be reduced or exempted (simplified omitted).

Article 133 (Aggregate Ceiling of Reduction or Exemption of Transfer Income Tax and Gift Tax)

(1) Of the total amount of capital gains tax to be reduced or exempted for an individual under Articles 33, 43, 69, 70, 77, 77-3 or Article 29 of the Addenda of Act No. 6538, the larger of the following amounts shall not be reduced or exempted. In such cases, the total amount of capital gains tax reduced or exempted shall be added up in the order of transfer of assets:

1. The larger of the following amounts calculated by taxable period:

(b) Where the total amount of capital gains tax to be reduced or exempted pursuant to Articles 33, 43, 69, 70, 77, 77-3 or Article 2 of the Addenda of Act No. 6538 exceeds 200 million won by taxable period, the amount equivalent to such excessive portion;

Addenda (No. 9272, December 26, 2008)

Article 1 (Enforcement Date) This Act shall enter into force on January 1, 2009: Provided, That the amended provisions of Article 133 shall enter into force on the date of its promulgation, and (hereinafter omitted)

The amended provisions of Article 133 (Application of Aggregate Ceiling on Reduction and Exemption of Transfer Income Tax and Gift Tax) shall apply to the first transfer in the taxable year to which the date of enforcement of this Act belongs.

/ The former Income Tax Act

§ 108. Tax credit paid by preliminary return

(1) If a person pays a tax jointly with a preliminary return, the amount equivalent to 10/100 of the tax amount to be paid from such calculated tax amount shall be deducted.

(2) The deduction under paragraph (1) shall be deemed the tax credit on preliminary return and payment.

(1) The former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 154 on April 30, 2010; hereinafter the same shall apply)

Article 84 (Deduction of Tax Amount paid by Preliminary Return)

(1) The tax credit on the preliminary return and payment under Article 108 of the Act shall be limited to cases where the full voluntary return and payment are made with the amount of tax payable on the amount of the relevant preliminary return and payment (excluding omission of the proviso).

(2) The term "tax amount payable under paragraph (1) means the amount of tax reduced or exempted under the Restriction of Special Taxation Act, the amount of tax paid overseas under Article 118-6 of the Act, and the amount of tax paid overseas under Article 586 of the Act, and the land excess profit tax deducted from the amount of tax paid for the transfer income tax under Article 26 of the Land Excess Gains Tax Act before it is repealed by the repealed Act

【former Framework Act on National Taxes

Article 51 (Appropriation and Refund of National Tax Refund)

(1) If there is any amount paid in error or tax amount to be refunded under tax-related Acts (where there is any amount of tax to be deducted from the amount of tax refundable under tax-related Acts, referring to the remaining amount after deduction), among those paid by a taxpayer as national taxes, additional dues or disposition fees for arrears, the head of a tax office shall immediately determine such amount of erroneous payment, excess payment or tax amount as a refund of national tax. In such cases, any

Article 52 (Additional Payment on Refund of Taxes)

Where the head of a tax office appropriates or pays a national tax refund pursuant to Article 51, he/she shall add an amount calculated according to the interest rate prescribed by Presidential Decree (hereinafter referred to as "additional refund on refund of national taxes") to the national tax refund in consideration of the period from the day following the day specified in the following subparagraphs to the day when appropriated or determined to pay the refund, and the deposit interest rate of financial institutions. In such cases, in the application of the provisions of subparagraph 1, the amount paid by interim prepayment or

5. For a national tax refund owing to the amendment of a law after lawful payment, the enforcement date of the law; and

C. Determination

According to Article 108 of the former Income Tax Act, the amount of tax credit for preliminary return is not the amount of tax paid.

Article 84(2) of the former Enforcement Rule of the Income Tax Act provides that the amount of tax payable is equivalent to 10/100 of the "amount of tax payable" and Article 84(2) of the former Enforcement Rule of the Income Tax Act deducts the amount of tax to be reduced or exempted under the Restriction of Special Taxation Act from the calculated tax amount. Thus, Article 133 of the former Restriction of Special Taxation Act amended after the plaintiff made a preliminary return and paid the amount of tax payable is 15,193,000 won (=215,193,1900 won - 200 million won) and the amount of tax payable is 1,519,000 won equivalent to 15,193,000 won, and thus, the amount of tax to be paid is lawful to refund the amount of tax to the plaintiff's voluntary return after deducting the determined amount of capital gains tax from 103,674,000 won.

Therefore, we cannot accept the plaintiff's above argument.

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.