If the amount of tax assessed exceeds the reasonable amount of tax, the scope of revocation

Even if it is found that capital gains have occurred due to the fault in the calculation process of the tax base of capital gains, if it is recognized that the amount of tax assessed exceeds the recognized amount of tax assessment, only the excess amount shall be revoked, and the entire amount of tax assessment shall not be revoked.

Article 19 of the Administrative Litigation Act

Supreme Court Decision 81Nu296 delivered on May 11, 1982, 83Nu454 delivered on October 25, 1983

Plaintiff

The director of the tax office

Seoul High Court Decision 84Gu102 delivered on November 22, 1984

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

The grounds of appeal by the defendant litigant are examined.

1. The court below acknowledged the fact that the defendant's taxation of this case was acquired by the plaintiff on September 30, 1981 on the basis of the Housing and Commercial Bank's subscription deposit passbook (a million won on the face value) and the plaintiff transferred the status of the purchaser of the above apartment to the non-party 1 on May 11, 1982, and obtained transfer margin of 31,480,240 won on the premise that it is not recognized as a premise, but on the other hand, it is not recognized as a premise. On the other hand, the plaintiff purchased and paid in full one million won on the face value of the house subscription deposit deposit of the Korea Housing and Commercial Bank around July 1980, and then acquired transfer margin of 1 million won by transferring the above deposit passbook to the non-party 2 around September 30, 1981. In light of the records, the above fact finding by the court below is justifiable, and there is no error in the rules of evidence or incomplete hearing.

2. However, the lower court acknowledged the Plaintiff that capital gains amounting to one million won were generated as above, but, as long as the said income and the income the Defendant based on the premise of the instant taxation are different in terms of the subject of taxation or the person to whom the income is attributed, and as long as it is not acknowledged that the premise of the instant taxation is not established, the lower court completely revoked the instant taxation on the ground that

However, the transfer of the deposit passbook at the original time and the transfer of the status of the buyer of the apartment at the original time of the original sale is the transfer of the right to acquire the real estate under the Income Tax Act, and the subject of taxation is the same, and the person to whom the capital gains from the above gold one million won belongs should be determined by whether the amount exceeds the legitimate tax amount. Thus, even if the plaintiff was found to have the same error as the original judgment at the time of the original judgment in the calculation process of the tax base of the transfer income, the court below which recognized the fact that the capital gains have accrued to the plaintiff, which recognized the fact that the capital gains have accrued to the plaintiff, shall revoke the excess portion if it is recognized that the amount exceeds the recognized tax amount of the tax assessment in this case after examining the reasonable tax amount, and it shall not be deemed to have been unlawful (see, e.g., Supreme Court Decisions 81Nu296, May 11, 1982; 8Nu454, Oct. 25, 1983).

3. Therefore, the judgment of the court below is reversed, and the case is remanded to Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Jong-sung (Presiding Justice)