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Title
Whether a duty of return is levied on paper
Summary
It can not be deemed that applying the additional rate of false bookkeeping to determine the tax base and to impose penalty tax in good faith after determining the tax base is a double taxation.
The decision
The contents of the decision shall be the same as attached.
Text
1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.
Reasons
1. Details of the instant disposition
The following facts are either disputed between the parties, or acknowledged with Gap evidence 1, Gap evidence 2-1 to 5, Eul evidence 4-1 to 4, Eul evidence 1-2, Eul evidence 2-1 to 3, Eul evidence 3-1 and 2-2, Eul evidence 3-1 and 2-2, and the whole purport of the pleadings can be reviewed, and there is no counter-proof.
(1) 원고는 그 소유의 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지와 ㅇㅇ번지 지상에 ㅇㅇ빌딩(지상 20층 및 지상 2층의 건물 2동)을 신축하여 1990년경부터 이를 분양하고 일부는 임대하였다.
(2) On May 31, 1995, the Plaintiff filed a final tax base return on global income tax for 1994 pursuant to Article 100 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same) and filed a final return on global income tax for 194; business income from real estate sale in 194; Article 120 of the Act; and Article 169-2 of the former Enforcement Decree of the Income Tax Act and Article 169-2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1467, Dec. 31, 1994; hereinafter the same) by filing a report on the total amount of income; Article 27,703,841,677 won; Article 167 of the Act by filing a final return on the standard amount of income for real estate sale in 1994; Article 257 of the Enforcement Decree of the Income Tax Act;
(3) However, the defendant shall calculate the amount of income for the pertinent year as 8,311,152,503 won [6,924,460,419 x (1 + 0.2)] and 843,367,971 won [702,806,643 x (1+ 1+ 1+ 20.2)] and calculate the amount of income for the pertinent year as 8,31,152,503 won [6,924,460,419 x 706,643 x (1+2.2)] and calculated the amount of income for the pertinent year as 20% of the above basic rate under the standard income rate set by the Commissioner of the National Tax Service, and calculated the amount of income for the pertinent year by adding the above basic rate to 20% of the above basic rate to the amount of income for the pertinent real estate sale and lease at the expense of the plaintiff.
(4) The plaintiff filed a request for review with the Director of the National Tax Tribunal on September 20, 196. The Director of the National Tax Tribunal decided on October 27, 1997 the real estate income from the lease of real estate on the spot by the account books kept by the plaintiff and documentary evidence, and the standard income rate applicable to the preliminary investigation and determination of the business income from the sale and purchase of real estate shall be the basic rate for the period from January 1, 1994 to August 31, 1994. Pursuant to Article 225 (2) of the Enforcement Decree of the Act, the remaining portion of the total amount of the income from the entry of the plaintiff on September 1, 1994, including the remaining portion of the total amount of the income from the sale and purchase of real estate was 30 won, 196 won, 200 won after deducting the total amount of the income from the total amount of the income from the sale and purchase of real estate from 36 won, 30 won, 1984 won and 198.
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The defendant asserts that the disposition of this case is lawful on the grounds of the above disposition and the relevant statutes, and the plaintiff asserts that the disposition of this case is unlawful on the following grounds.
(1) As long as the Plaintiff adopts the comparative taxation system under Article 82(1) and (2) of the Act, the calculation of global income tax of real estate sales businessmen is larger than that of pure global income tax calculation method and pure global income tax calculation method, so the Plaintiff’s calculation of global income tax in the instant case is based on global income tax method, such as “total determined tax amount by global income tax method by the Plaintiff’s filing method in the attached Table,” in light of the fact that transfer income tax is based on non-business owner’s premise, the calculation of global income tax is limited to the standard income rate by applying the same as the standard income rate by the Plaintiff’s filing method in the attached Table, and thus, it cannot be applied to the bearer rate based on the premise of the entrepreneur’s non-business owner’s non-business owner’s non-performance of obligation. Accordingly, the Plaintiff asserts that the transfer income tax should be calculated by adding the gross income tax rate of 90,120,176 and 251 won from the date of the Plaintiff’s assertion in the attached Table 100.
(3) In addition, the Plaintiff asserts that the imposition of an inorganic additional tax is unlawful as a double taxation, insofar as the Plaintiff’s application of the inorganic premium rate to the Plaintiff’s life captain.
(b) Related statutes;
Article 82 (2) of the Act provides that, in calculating the global income tax on a person having the global income other than the business income accruing from the sale and purchase of land or a building (hereinafter referred to as "land, etc.") on the global income amount as a real estate sales businessman, the larger of the tax amounts under each of the following subparagraphs shall be the global income tax amount:
(a) (Profit from sale and purchase £ Other necessary expenses + Other global income) £ Tax base of global income = Tax base of global income, global tax rate 】 basic tax rate of global income.
(b) The tax rate under each subparagraph of Article 70 (3) of the Act ¡¿ (other global income amount ? the basic tax rate) 】 the calculated global income tax amount.
Article 70 (1) of the Act provides that the amount of income tax on a resident’s global income shall be the amount calculated by applying the following tax rates to the global income tax base in the current year, and the amount of tax in cases where the tax base of global income exceeds 64,00,000 won shall be the amount calculated by adding 45/100 of the amount exceeding 64,740,000 won to 17,740,000 won, and the amount of income tax on a resident’s transfer income under paragraph (3) of the same Article shall be the amount calculated by applying the tax rate falling under any of the following subparagraphs to the tax base of global income in the current year. The amount of income tax on a resident’s transfer income shall be the amount calculated by applying the tax rate under each of the following subparagraphs to the assets other than those under subparagraphs 2 through 5, while setting the tax rate based on the amount of tax on the tax base of global income in the current year to the assets above 500,500,000 won.
Article 92(1) of the Act provides that the profit margin on land, etc. of a real estate sales businessman shall be the amount obtained by deducting the necessary expenses under Article 45 from the sales price thereof. Paragraph (2) of the same Article provides that the calculated tax amount on the profit margin under paragraph (1) shall be the amount calculated by multiplying the profit margin by the tax rate under each subparagraph of Article 70(3). Paragraph (4) of the same Article provides that matters necessary for the calculation of the profit margin on land, etc. under paragraph (1) shall be prescribed by the Presidential Decree. Article 141 of the Decree provides that the profit margin on land, etc. under Article 92(1) of the Act shall be the amount obtained by deducting the amount falling under any of the following subparagraphs from the sales price thereof, while Article 94 of the Decree provides for the amount equivalent to the necessary expenses for transferred assets as necessary expenses,
법 제94조 제1항 은 부동산 매매업자가 토지 등 매매차익예정신고 또는 토지 등 매매차익 예정신고자진납부를 하지 아니하였거나 그 신고한 매매차익이나 납부한 세액에 탈루 또는 오류가 있는 때에는 정부는 즉시 그 매매차익 또는 세액을 결정하거나 시정하고 대통령령이 정하는 바에 의하여 당해 부동산매매업자에게 통지하여야 한다고 하고 영 제142조 제1항 은 법 제94조 의 규정에 의한 토지등 매매차익과 세액의 결정은 다음 각호에 의한다고 하면서 제1호에서 부동산매매업자가 토지등 매매차익예정신고시에 제출한 증빙서류 또는 비치ㆍ기장한 장부와 증빙서류에 의하여 제141조 의 규정에 의한 토지 등 매매차익을 계산할 수 있을 때에는 그에 의하여 조사 결정한다고 하고 제2호에서 제169조 제1항 각호 에 해당하는 경우에는 토지등 매매차익은 제141조 의 규정에 불구하고 매매가액에 표준소득률을 곱하여 계산한 금액으로 한다고 규정하고 영 제169조 제1항 은 법 제120조 제1항 에서 대통령령이 정하는 명백한 객관적 사유 라 함은 다음 각호에 게기하는 것을 말한다고 하고 제1호에서 과세표준을 계산함에 있어서 필요한 장부와 증빙서류가 없거나 중요한 부분이 미비 또는 허위인 경우를 들고 있으며 영 제169조의2 는 그 제2항에서 국세청장이 정하는 표준소득률이란 규모와 업황에 있어 평균적인 기업에 대하여 업종과 기업의 특성에 따라 조사한 표준적인 비율을 참작하여 결정한 소득률을 말하는 것으로 규정한 후, 그 제3항에서 국세청장이 표준소득률을 정함에 있어 차등률을 정할 수 있도록 규정하면서 그 제1호에서 그 사유로서 자료보고ㆍ거래양성화등의 성실도 및 수입금액의 규모 등을 들고 있다.
Article 121(4) of the Act provides that the amount equivalent to 10/100 of the amount calculated by multiplying the calculated tax amount by the ratio of the amount of income not entered in the account book or the amount to be entered in the account book, if a person liable for book-keeping by double-entry or simple book-keeping fails to keep or enter the account book, or the amount of income entered in the account book is less than the amount to be entered in
C. Determination
(1) According to the provisions of Article 82, Article 92, Article 94 of the Act, Article 141, and Article 142 of the Decree, when calculating the amount of tax pursuant to the above provision of Article 82 (2) 2 of the Act, the profit margin of a real estate sales businessman shall be an amount obtained by deducting necessary expenses from the sales price, but where a real estate sales businessman does not make a voluntary payment, or where there is an error in its return, payment, or error, where profit margin can be calculated by books or documentary evidence, if there are no books or documentary evidence necessary for calculating the tax base, it shall be calculated by multiplying the sales price by the standard income ratio if there is no book or documentary evidence necessary for calculating the tax base, and according to the purport of the above provision of Article 82 (2) 2 of the Act, it is reasonable to determine the amount of tax calculated by applying the above provision of Article 9 of the Act to the calculation of the amount of tax for the building site acquired on May 2, 1980, it is reasonable to determine the amount of tax base return rate of 2000 won.
(2) As to the plaintiff's second argument, since the plaintiff had been making entry from around 1990, since there was no evidence to prove the acquisition cost of the above site acquired by the plaintiff around 1980, it constitutes "business operator who reported or decided the amount of income by estimation at the expense of the person subject to the base income ratio for 94 years determined by the Commissioner of the National Tax Service, as seen above, as long as there was no evidence to prove the acquisition cost of the above site purchased by the plaintiff in 1980, it cannot be viewed as a retroactive taxation since it cannot be deemed that applying the indefinite price ratio since it was impossible to prove the acquisition cost of the above site purchased by the plaintiff in 1980, since it did not impose the duty of bookkeeping from 1980, the above argument is groundless, and even if the policy effect of inducing entry can be practically accompanied by the application of the indefinite price ratio itself, it cannot be viewed that it violates the purpose of imposing additional tax on the plaintiff's income in accordance with the law, and thus, it cannot be applied differently to the amount of tax base under the law.
3. Conclusion
Therefore, the plaintiff's claim of this case seeking revocation on the ground of the illegality of the taxation disposition of this case is dismissed without merit, and the costs of lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.
October 1, 1998