propriety of the disposition that excludes a tax return deduction equivalent to the tax amount overpaid at the time of the preliminary return;

It is reasonable to recognize only 10% of the calculated tax amount corresponding to the amount of tax to be paid by voluntary report out of the total amount of lawful calculated tax in cases where only part of the amount of tax is voluntarily reported and paid.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.

1. Details of the disposition;

The following facts are not disputed between the parties, or there is no other counter-proof in each of the statements in Gap evidence 2, 3, and Gap evidence 4, 5, and 6.

가. 원고가 ㅇㅇ시 ㅇㅇ동 산 101의 35 임야 3,016.05제곱미터(이하 이 사건 토지 라 한다)를 1967. 8. 8. 취득하여 1992. 12. 26. 주택건설등록업체에 국민주택 건설용지로 양도하고(원고는 소장에서 양도일을 1993. 1. 29.이라고 주장하나 착오로 보인다), 1993. 1. 29. 피고에게 자산양도차익예정신고를 함에 있어 구 조세감면규제법(이하 조감법 이라 한다) 제62조제1항(1991. 12. 27. 법률 제4451호로 개정되고 1993. 12. 31. 법률 제4666호호 개정되기 전의 것)에 의하여 양도소득세 산출세액 1,304,328,418원의 50퍼센트인 652,164,209원을 공제하고 다시 위 산출세액의 10퍼센트에 상당하는 130,432,841원을 자산양도차익예정신고납부세액공제(이하 신고납부공제 라 한다)로서 공제한 나머지 521,731,368원을 양도소득세로 자진납부하였다.

B. Thereafter, Article 88-2 of the Early Reduction and Exemption Act provides that the amount in excess of 300,000,000 won shall not be reduced or exempted in the event that the amount in excess under Article 62 of the same Act exceeds 300,000 won, the said preliminary return becomes aware of the fact that the amount in excess has been excessively appropriated, and on May 31, 1993, the said preliminary return corrected the amount in excess of 300,000,000 won and deducted the amount in excess of 352,164,209, which was the remainder after deducting the amount in excess of 302,00,000 won from

C. On December 1, 1994, the defendant decided to impose capital gains tax as stated in the above final return, but again, on May 1, 1995, the tax amount paid under the above provisional return shall be deemed excluded from the return and payment deduction. The income amount corresponding to the portion of the tax paid under the preliminary return shall be 1,332,174,366 won [tax base = tax base 2,231,380,698 ± 521,731,368 won ± due tax amount to have been paid by the preliminary return 873,895,577%) 764,804,619 won [265,50,000 won = 265,500 won + (the amount to be imposed under the above tax amount to be imposed under the tax return and payment 360,971,6450,500 won + the amount to be imposed under the above tax amount to be imposed under the 36365,560,5160,51650,600

2. Whether the instant disposition is lawful

A. The parties' assertion

In light of the fact that Article 72 (1) of the former Enforcement Rule of the Income Tax Act provides that the tax amount to be paid by self-return shall not be paid unless all the tax amount to be paid by self-return is paid on the transfer margin accrued during the period of the preliminary return of transfer margin, the defendant asserts that the disposition of this case, which excluded the tax amount to be paid by self-return as long as part of the legitimate tax amount has been paid in the preliminary return of transfer margin of this case, is legitimate, and that the plaintiff stipulates that the tax amount to be paid by self-return shall be 10 percent of the calculated tax amount, so the plaintiff asserts that the disposition of this case is unlawful since 10 percent of the calculated tax amount

B. Relevant statutes

Article 98 (1) of the former Income Tax Act (amended by Act No. 4520 of Dec. 8, 1992) provides that when voluntary payment is made with the return on the profits accruing from the transfer of property rights, the amount equivalent to 10/100 of the calculated tax amount shall be deducted from the calculated tax amount. Article 72 (1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1913 of Mar. 2, 1993) provides that the return on the profits accruing from the transfer of property rights under Article 98 of the same Act shall be made only when the return on the profits accruing from the return on the transfer of property rights under Article

C. Determination

First, we examine the validity of the above provision of the Enforcement Rule. The Act only provides that if a preliminary return on gains from the transfer of assets is made and a voluntary payment is made, the amount equivalent to 10/100 of the calculated tax amount shall be deducted from the tax amount, and it does not have any provision stipulating that a tax return shall be made only when the total tax amount reported or the total amount of the reasonable capital gains is paid, or any provision entrusting the scope of the tax return and payment shall be limited by the subordinate statutes. Nevertheless, the above Enforcement Rule provides that a tax return deduction shall be made only when a tax return is made and a tax return deduction is made in full, and if a part of the amount is paid, it shall not be recognized as a tax return and payment deduction is unreasonably limited to the rights of taxpayers recognized by the Act without any legitimate delegation by the law.

Therefore, even if the Plaintiff made a voluntary return and payment of only a portion of the legitimate tax amount to be paid at the time of the preliminary return of this case as a result of erroneous application of the limit of the tax amount to be reduced or exempted under the Early Reduction and Exemption Act, it would be possible to deduct the tax amount calculated on the basis of the total calculated tax amount even in cases where the Plaintiff made a voluntary return and paid only a portion of the legitimate tax amount to be paid at the time of the preliminary return of this case. The purpose of the tax return and payment mutual aid system is to induce a taxpayer to bona fide return and voluntary payment and discount interest on advance payment of tax amount. Therefore, it is reasonable to recognize only 10% of the calculated tax amount corresponding to the tax amount to be paid by the taxpayer when he/she makes a voluntary return and paid a portion of the legitimate tax amount in the preliminary return of this case. However, this is contrary to the purport of the tax return and payment system as above, and it is also contrary to the purpose of the tax return and payment system as well as the tax amount to be paid on the basis of the legitimate preliminary return and payment.

Therefore, the part that deducts the amount equivalent to 10/100 of the calculated tax amount from the calculated tax amount under Article 98 (1) of the former Income Tax Act is reasonable to say that the amount equivalent to 10/100 of the calculated tax amount corresponding to the reported and paid tax amount from the reasonable calculated tax amount on the gains on the transfer of assets is deducted. In this case, the reasonable tax amount corresponding to the reported and paid tax amount refers to the tax amount calculated on the basis of the tax base corresponding to the reported and paid tax amount.

In short, it is reasonable to apply the corresponding tax rate to the amount calculated by applying the corresponding tax rate to the amount as the tax base when making the disposition in this case where only a part of the tax amount to be paid by the preliminary return has been paid by voluntary return 】 the amount calculated by applying the corresponding tax rate to the amount as the tax base in the disposition in this case (Article 98 (1) of the former Income Tax Act, which was amended on December 8, 1992 and enforced on January 2, 1993, effective on January 2, 1993, has the amount equivalent to 10/100 of the calculated tax amount to be paid from the calculated tax amount, shall be deducted from 10/100 of the calculated tax amount to be paid from the calculated tax amount. This is because the tax amount to be paid by the preliminary return ± the tax amount to be paid by voluntary return ± 10 percent of the calculated tax amount before the tax amount to be deducted from the calculated tax amount to be paid by the tax amount to the previous tax return.

Ultimately, the instant disposition is justifiable since the amount of capital gains tax is calculated by calculating the amount of deduction for tax return according to the calculation method as seen above and the amount is additionally imposed as much as the unpaid amount of tax, and no other illegal grounds exist for the instant disposition.

3. Conclusion

Therefore, the disposition of this case is legitimate, and the plaintiff's claim seeking its revocation is dismissed as it is without merit, and it is so decided as per Disposition.