Seoul High Court 2007Na91376 (208.05.02)

Effect of the final return on transfer tax and whether excess tax paid by preliminary return constitutes an invalidation of tax per annum.

The preliminary return is incorporated into and extinguished in the final return, and the Plaintiff’s capital gains tax liability was determined by the final return. Therefore, the excess tax paid at the time of the preliminary return constitutes an overdue invalidity.

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

Article 110 of the Income Tax Act

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

In full view of the fact that capital gains tax is applied to the principle of fixed-term taxation and that a specific tax liability becomes final by calculating the tax base and the amount of capital gains generated during the pertinent taxable period and filing a comprehensive return by calculating the total tax base and the amount of tax, the proviso to Article 110 (2) of the Income Tax Act, the fact that a final return on tax base of capital gains falls under Article 173 (4) 1 through 3 of the Enforcement Decree of the Income Tax Act, and that a final return on tax base of capital gains (hereinafter referred to as a "final return") must be made if the taxpayer falls under the case of a preliminary return, and that no additional tax is levied on the prepayment of the preliminary return and the failure to pay taxes. In cases where a taxpayer files a final return on any different content after filing a preliminary return, the tax base and the amount of tax temporarily determined by such preliminary return are added to the tax base and the amount of tax determined by the final

According to the facts duly established by the court below, the plaintiff entered into a sales contract with ○○ Housing Co.,, Ltd. on Oct. 7, 2005 on the land of this case with the plaintiff 459 m2,327 m2, 459 m2, 461 m2, 461 m2, 398 m2, 468 m2, 678- m2, 58 m2 (hereinafter referred to as the "the above land of this case") and sold 19,500 m2,000 m2,000 m2,000 m2,000,000 m2,000 m2,000,000 m2,000 m2,000,000 m2,000,000 m2,000 m2,06 m2,005.

Nevertheless, the court below rejected the plaintiff's claim in this case, claiming that the tax amount paid by the plaintiff exceeds the tax amount calculated according to the final return tax base, and that the difference between the payment amount and the final return is returned, on the ground that the plaintiff's tax liability becomes final and conclusive by the initial preliminary return. In so doing, the court below erred by misapprehending the legal principles on the relationship between the preliminary return and the final return,

Therefore, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.