Seocho 208west 1607 (Law No. 26, 2008)

Whether any provision to add capital gains to capital gains violates the principle of tax equality or not.

The current year stipulates that capital gains shall be imposed by adding up the amount of capital gains, and even if the sum includes the amount of capital gains through expropriation consultation, it does not seem significantly unreasonable. Therefore, it does not seem to be contrary to the principle of tax equality.

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 2,513,200 against the Plaintiff on November 1, 2007 shall be revoked.

1. Details of the disposition;

A. On April 16, 1990, the Plaintiff acquired and owned 9/190 shares of 1/190 shares (referred to as “instant land”) among 389-5 square meters of land 109 square meters in Jindong-gu, Seoul. The Plaintiff did not file a return on the tax base of transfer of the instant land to the Defendant.

B. Around 2006, the Plaintiff transferred land 254-3 (hereinafter referred to as “non-party land”) held in Gangwon-do, Gangwon-do, Seoul Special Metropolitan City (hereinafter referred to as “Seoul Special Metropolitan City”) and filed a report on the tax base of transfer income, and voluntarily paid capital gains tax of KRW 13,382,640.

C. On November 1, 2007, the defendant calculated the transfer value and acquisition value of the land of this case (the acquisition date is springed as March 14, 200) as the standard market price, and then determined and notified the amount of the transfer income of this case as KRW 8,187,36, by adding the transfer income amount of the land of this case to KRW 74,239,256, and then calculated the transfer income of the land of this case in 2006 as KRW 82,426,592, and accordingly, calculated the determined tax amount as KRW 15,895,840 (including the additional tax for negligent return of KRW 221,050, the additional tax for negligent payment of KRW 81,570, which was calculated as KRW 13,382,640, and KRW 2513,200 (hereinafter referred to as the "disposition of this case").

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to 5, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The instant land was transferred by expropriation consultation irrespective of the Plaintiff’s intent. In such a case, Articles 95 and 104 of the Income Tax Act, which provides for the application of progressive tax rates by adding the amount of capital gains during the relevant year, violates the principle of tax equality, thereby violating the unconstitutional and unconstitutional disposition based on the provision of tax equality, is unlawful.

(2) The report on the tax base of transfer income of the instant land ought to be made by the ○○ Construction Corporation, which acquired the instant land through a consultation on expropriation. Therefore, the part on the additional tax on negligent tax returns among the instant disposition is unlawful.

(3) Even if a person did not pay the capital gains tax during the period of disputing the imposition of capital gains tax based on unconstitutional provisions, an additional tax for unfaithful payment cannot be levied. Therefore, the part of the additional tax for negligent tax returns among the instant disposition is unlawful

B. Determination

(1) As to the first argument

The provision of tax requirements and subject matters in a tax law belongs to the legislative discretion of the legislator unless the provision is clearly unreasonable. The provision of this case provides that capital gains in the year concerned shall be imposed after summing up the amount of capital gains in the year concerned, and it does not seem significantly unreasonable even if it includes capital gains through expropriation consultation in the combined amount of capital gains. Therefore, Articles 95 and 104 of the Income Tax Act are not deemed to violate the principle of tax equality. Accordingly, the Plaintiff’s above assertion

(2) On the second argument

Articles 105 and 110 of the Income Tax Act stipulate that a transferor of assets shall make a preliminary or final return on the tax base of transfer income to the chief of the district tax office having jurisdiction over the place of tax payment. Therefore, the plaintiff's

(3) On the third argument

As seen in the judgment on the plaintiff's first argument, Articles 95 and 104 of the Income Tax Act are not unconstitutional provisions. Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

The plaintiff's claim is dismissed.