Madern 2014 Schedule 1372

Whether it constitutes a house under the Income Tax Act, and whether a disposition of comparative taxation is legitimate

Where the exterior of a residential building, such as a wall and pole, is a house, and a comparative taxation disposition is legitimate even if the global income amount is a deficit.

Article 64 of the former Income Tax Act, and Article 168-6 of the Enforcement Decree of the same Act

2014Guhap3175 Global income and revocation of disposition

AA

OO Head of the tax office

December 4, 2014

January 15, 2015

1. The plaintiff's request shall be made.

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

Cheong-gu Office

The Defendant’s disposition of imposition of global income tax of KRW 00,000,000 (principal tax of KRW 00,000,000, additional tax of KRW 00,000,000) for the year 208 against the Plaintiff on August 8, 2013 is revoked.

1. Details of the disposition;

A. On June 23, 200, the Plaintiff acquired 00/000 of 0,000,0000 m2, 000,000 m2,000 m2,000 m2,000,000 m2,000 m2, and 82.35 m2,00 m2,000 m2,000 m2,000 m2,000 m2,000 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2.

B. After December 31, 2005, the Plaintiff entered into a sales contract with MaximumD to sell the instant real estate in total to KRW 00,000,000,000. On January 30, 2000, the Plaintiff completed the registration of ownership transfer with respect to the instant real estate.

C. On June 1, 2009, the Plaintiff filed a final return on capital gains tax of KRW 00,000,000, acquisition value of KRW 000,000,000, necessary expenses, and KRW 00,000,000, and the calculated tax amount of KRW 00,000,000, with respect to 8 real estate, including apartment houses transferred for the tax year 200, including the instant real estate, and did not pay the said amount. On August 10, 2009, the Defendant notified the Plaintiff of KRW 00,000,000,000 for capital gains tax for the year 200.

D. Meanwhile, as between September 26, 201 and November 9, 2011, the Defendant conducted an individual consolidated investigation on the Plaintiff. In the process, the Plaintiff confirmed that the Plaintiff acquired and transferred a total of 000 real estate from around 2000 to the auction, and determined the Plaintiff as a real estate sales businessman, and revoked the transfer income tax without notice given to the Plaintiff. On August 8, 201, 201, the Defendant did not apply the special case of calculating the tax amount on the real estate sales businessman under Article 64 of the former Income Tax Act (amended by Act No. 9270, Dec. 26, 2000; hereinafter referred to as the “former Income Tax Act”) but did not apply the special case of calculating the tax amount on the real estate sales businessman (hereinafter referred to as “non-taxable taxation provision”). The amount of global income for 200 billion won should be considered as 00,000,000 won, and the amount of tax calculated exceeds the above necessary expenses.

E. However, the director of Daejeon Regional Tax Office confirmed that the provisions of comparative taxation under Article 64 (1) 1 of the former Income Tax Act did not apply to the Plaintiff’s global income tax when calculating global income tax, which is a real estate sales businessman with profit margin such as housing, and ordered the Defendant to correct the Plaintiff’s global income tax on August 8, 201, as the aggregate of the calculated tax amount under Article 64 (1) 1 of the same Act (the aggregate of the tax amount calculated by applying the profit margin on capital gains to housing, etc. and the tax amount calculated by applying the global income tax rate to the global income tax base after deducting the profit margin on housing, etc. from the global income tax base) and the aggregate of the tax amount under Article 64 (1) 2 of the same Act (the aggregate of the tax amount calculated by applying the profit margin on capital gains to housing, etc., and the tax amount calculated by applying the global income tax rate to the global income tax rate). The Defendant deemed the instant house as the non-business land subject to heavy taxation or the land subject to heavy taxation.

F. On February 20, 2014, the Plaintiff filed an appeal with the Tax Tribunal on February 20, 2014 after filing an objection. On July 7, 2014, the Tax Tribunal rendered a decision to the effect that “The Tax Tribunal rendered a reinvestigation on the eight profit margin from the transfer of real estate in the 2000 F year including the instant real estate, which applies differently from the fact (an excessive appropriation of the transfer amount, acquisition value, and understatement of necessary expenses), to determine the tax base and tax amount according to the result, and dismissed the remainder of the appeal.”

G. On July 24, 2014, the Defendant issued a notice of correction to reduce the Plaintiff’s global income tax of KRW 000,000,000 for the year 200,000 (this tax is KRW 00,000,000 for additional tax, and KRW 00,000 for additional tax) upon the determination of the Tax Tribunal (hereinafter “instant disposition”).

Facts that there is no dispute over recognition, Gap evidence 1-1, 2, Gap evidence 2, Gap evidence 3-1 through 3, Eul evidence 1-2, Eul evidence 1-2, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Determination on the previous defense on the part of the claim for revocation of the imposition of additional tax among the lawsuit of this case

The Defendant asserts that the part of the instant disposition seeking the revocation of the imposition of penalty tax amounting to KRW 00,000,000 among the instant disposition did not go through legitimate pre-trial procedures, and thus, it is unlawful by setting the requirements for litigation.

In light of the following circumstances, i.e., ① the Plaintiff filed a request for a judgment with the Tax Tribunal regarding the disposition prior to the revision of the reduction among the dispositions in this case, although the Plaintiff did not specifically dispute the imposition of penalty tax, the Plaintiff appears to have been subject to the tax judgment. ② If the Plaintiff is subject to the revocation of the disposition of principal tax from the Tax Tribunal, the disposition of imposition of penalty tax is automatically revoked, and it is difficult to view that the Plaintiff is automatically aware that it did not dispute the illegality of the disposition of imposition of penalty tax. ③ With respect to the disposition of imposition of principal tax, if the Plaintiff filed a lawsuit seeking the revocation of the disposition of imposition of principal tax without a request for a tax judgment regarding the disposition of imposition of penalty tax, and then filed a lawsuit for the revocation of the disposition of imposition of principal tax immediately after the request for a tax judgment regarding the disposition of imposition of principal tax, it is reasonable to view that the disposition of imposition of penalty tax cannot be seen as being identical in light of the above circumstances.

Therefore, the defendant's above assertion is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) the first argument;

In light of the fact that the instant house was maintained in an air space for a long time from fire around 2003 after the inside part of the house was destroyed to a third party on January 30, 2000, that electricity and water supply were cut off, that is, it was cut off, and that it is impossible to function as a house because various facilities such as toilets, water strings, kitchen, kitchen, etc. are destroyed or destroyed, it is reasonable to see that the instant house is closed in a state in which people cannot use for residential purpose.

Furthermore, even if the instant house is closed, since the instant building exists in the external form on the instant land, it cannot be deemed that the instant land was transferred, and even if it is deemed that the instant land was transferred, the Plaintiff leased the instant house to the previous owner, etc. from the date of acquiring the instant real estate on October 0, 200 to September 2003, and thus, it should be deemed that the Plaintiff transferred not the non-business land but the “business land” land provided to the leasing business during the lease business.

Therefore, under the premise that the housing of this case has the function of the housing at the time of transfer, the transfer of the housing of this case shall be deemed to have been transferred, or the disposition of this case imposing heavy taxation by deeming the land of this case as the land for non-business use is unlawful.

(ii) the second argument;

The comparative taxation provision of Article 64 of the Income Tax Act is based on the premise that a real estate sales businessman will have earned income as a result of his business, and thus, the taxation of business income to the plaintiff who has no actual income as a loss is in violation of the principle of substantial taxation under the Constitution and the principle of tax equality. The defendant'

(iii) the third assertion;

In light of the fact that it is more impossible for the Plaintiff, who is a tax specialist, to expect to voluntarily report and pay the principal tax of the instant disposition in accordance with the above comparative taxation provisions, because it is not possible to expect the Plaintiff to voluntarily report and pay the principal tax of the instant disposition by applying the above comparative taxation provisions, the Defendant, who is a tax specialist, to investigate the details of the Plaintiff’s sale and purchase of all real estate during the period of individual integration investigation into the Plaintiff, and to expect the Plaintiff to report and pay the amount of tax by applying Article 64 of the Income Tax Act to the Plaintiff. Thus, it is unlawful to impose the penalty tax even if it is separate from the legality of the principal tax imposition.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination on the first argument

A) Article 64 of the former Income Tax Act provides that the calculated global income tax amount of a resident operating real estate sales business (hereinafter referred to as "real estate sales businessman") who has profit margin on housing or land falling under any of the subparagraphs 2-3 through 2-7 of Article 104 (1) shall be based on the larger of the amount of tax falling under each of the following subparagraphs. The calculated global income tax amount under Article 55 (1) shall be the calculated global income tax amount under subparagraph 1, the total tax amount calculated by applying the tax rate under Article 104 from profit margin on housing, etc. under subparagraph 2, and the total tax amount calculated by applying the tax rate under Article 55 to the global income tax base after deducting the relevant total tax amount from the global income tax base, such as housing, etc.

Meanwhile, the determination of whether a building constitutes a house shall be based on whether the actual purpose of use is a building that is actually used for a residence regardless of the usage classification of the injury, and even if a temporary use is used for a non-residential purpose, its structure, function, or facility is in a state suitable for a residence as an original residential purpose, and the residential function is maintained and managed as it is, and thus, it shall be deemed a house for a building in which a principal or a third party is able to use as a house at any time (see, e.g., Supreme Court Decision 2004Du14960, Apr

B) In light of the following circumstances, even if the Plaintiff acquired the instant house by auction on October 0, 200, which can be acknowledged by comprehensively taking account of the respective entries and arguments in No. 2-1 through No. 11 as well as the following circumstances: (i) around 2003, when the former owner occupied and used the instant house without delivering it to the Plaintiff; and (ii) around 2003, when the former owner used the instant house as well as the subsidiary facilities such as kitchen, such as kitchen, etc., for the purpose of repairing the instant house, the interior part of the instant house was damaged; (iii) the Plaintiff was currently using the instant house as it appears from 00,000 won to 20,000 won after the point of view of the fact that the Plaintiff had been using the instant house as its residential purpose; and (iv) at the time, the Plaintiff had been holding the previous owner liable for negligence due to fire, as well as the amount of the instant estimates submitted at the time, to the extent that it would have been lost to its original state.

In addition, if the housing of this case does not correspond to "house" and is closed as the plaintiff's argument, the transfer of the land of this case is the same as the transfer of a site. Furthermore, if the period of ownership of the land of this case exceeds five years, the period exceeding two years immediately preceding the transfer date, the period exceeding one year immediately preceding the transfer date, the period exceeding one year, and the period exceeding 20/100 of the ownership period, and the period exceeding 20/100 of the resident's residence or business (Article 104-3 (1) 7 of the former Income Tax Act and Article 168-6 (1) of the former Enforcement Decree of the Income Tax Act). According to the above evidence, the plaintiff still has been neglected to lease the land of this case to 203 days after acquisition of the land of this case and to 200 F. of the transfer date of the land of this case, the period exceeding 20 years prior to the transfer date of the land of this case shall be deemed to have exceeded 10% of the previous 20 years or 4 years of the transfer period.

Therefore, the plaintiff's above assertion does not appear to have any mother or reason.

2) Determination on the second argument

The purpose of the legislation of Article 64 of the Income Tax Act is to prevent cases where one household and a person holding land for non-business, etc. intend to evade the heavy taxation system under the application of the global income tax rate lower than the transfer income tax rate of ordinary residents by registering as a real estate sales broker, to promote equity between a real estate dealer and a resident who is subject to the transfer income tax rate, and ② normally, where a resident transfers real estate, the relevant income is deemed as non-existent, non-competant, pro rata, and temporary income, and thus the transfer income tax is imposed separately on global income and transfer income, even if there is deficit in global income. Thus, even if there is no global income, it is unreasonable to impose the transfer income tax on the real estate sales businessman, even if there is no income due to the loss in global income, it is unreasonable to impose the taxation equivalent to the amount applying a specific tax rate under the above comparative provisions. ③ Even if Article 64 of the Income Tax Act is interpreted in a literal manner, it is not reasonable to deem the total amount of tax imposed by applying the profit margin under Article 104.

Therefore, there is no reason for the prior plaintiff's assertion on different premises.

3) Judgment on the third argument

Under the tax law, where a taxpayer violates various obligations, including a return and tax payment, as prescribed by the Act without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, an additional tax is an administrative sanction imposed as prescribed by the Act, and it is unreasonable to expect the taxpayer to fulfill such obligations (see Supreme Court Decision 2004Du930, Nov. 25, 2005). No taxpayer’s intentional or negligent acts may be considered, and the land or mistake in statutes does not constitute justifiable grounds (see Supreme Court Decision 201GDu1829, May 23, 201). However, the following circumstances can be acknowledged by comprehensively taking account of the following circumstances: (a) the Plaintiff’s failure to file a comprehensive return and payment of income tax for 200 billion won is difficult to deem that the Plaintiff’s return and payment of taxes on the real estate sales businessman under Article 64 of the Income Tax Act was based on the Plaintiff’s tax base and payment method, and the Plaintiff’s legitimate reasons for the imposition of taxes on global income tax, as well-founded tax payment duty.

Therefore, the plaintiff's above assertion is without merit.

4) Sub-committee

Therefore, the disposition of this case is legitimate when it is deemed that the house of this case is "house subject to heavy taxation", or that the land of this case is "land for non-business" and then applied Article 64 of the Income Tax Act to the plaintiff by applying Article 64 (1) 2 of the Income Tax Act, which is calculated by adding the total amount of tax under Article 64 (1) 2 of the Income Tax Act to the plaintiff.

4. Conclusion

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