early 201luminous5083 (03.14)

taxation imposed on the premise that the tax liability becomes final on the date of reporting profit margin on land, etc. is legitimate.

In light of all the provisions of the Framework Act on National Taxes and the Income Tax Act comprehensively, and the tax liability based on the scheduled return of profit margin such as land shall be determined at the time of filing a return, and it is legitimate to impose penalty tax for insincere payment which is issued on the premise that the plaintiff'

2012Guhap2082 Revocation of Disposition of Imposing income tax (additional tax)

ThisAAA

Head of the Jeonju Tax Office

November 20, 2012

December 11, 2012

1. Of the instant lawsuit, the part demanding revocation in excess of KRW 000 among the disposition imposing additional tax against the Plaintiff on July 1, 2011 by the Defendant shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

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

The Defendant’s imposition of penalty tax of KRW 000 against the Plaintiff on July 1, 2011 shall be revoked.

1. Details of the disposition;

A. On August 11, 2010, the Plaintiff sold a building (hereinafter referred to as “instant real estate”) on the ground that was newly built by the Plaintiff from January 19, 201 to January 31, 201, and on the ground of the 1721st floor and the third floor above the ground (hereinafter referred to as “instant real estate”).

B. The Plaintiff calculated on March 31, 201, and pursuant to Articles 69 and 77 of the former Income Tax Act (amended by Act No. 11146, Jan. 1, 2012; hereinafter the same), the tax amount of KRW 000 on the sales price of the instant real estate (=00 won for the sales price of the instant real estate - necessary expenses - 000 won) as the sales price of the instant real estate (i.e., KRW 000 x35%) and applied for the return of provisional return on land, etc. (hereinafter referred to as “the instant report”), and did not pay the calculated tax amount in installments.

C. Accordingly, on July 1, 2011, the Defendant imposed an imposition of KRW 000 on the Plaintiff, and imposed an additional tax on the amount of the instant returned tax pursuant to Article 47-5 of the former Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011) (hereinafter “instant disposition”).

D. On July 29, 201, the Plaintiff appealed and filed a request for a trial with the Tax Tribunal on November 11, 201 through an objection with the Gwangju Regional Tax Office on July 29, 201, but the said request was dismissed on March 14, 2012. On March 27, 2012, the Defendant notified the Plaintiff of the calculated tax amount on the Plaintiff’s application for correction that insufficient necessary expenses at the time of filing the instant return, and the profit margin on the instant real estate (=00 won - increased necessary expenses - increased to KRW 000) and KRW 000 for late payment.

[Ground of Recognition] The facts without dispute, Gap evidence 1, 3, and Eul evidence 1 to 4 (including household numbers), and the whole purport of the pleading

2. Determination on this safety defense

A. Defendant’s defense

The instant disposition was partially mitigated by the rectification disposition made on March 27, 2012, and the part seeking revocation of the amount exceeding the reduced amount of tax in the instant lawsuit is unlawful.

B. Determination

The tax amount exceeding KRW 00,00 among the dispositions in this case, was already reduced by the correction disposition in March 27, 2012, which was before the filing of the lawsuit in this case, and the plaintiff has no interest in seeking revocation as the lawsuit in this case. Therefore, the part seeking revocation of the tax amount exceeding KRW 000 regarding the disposition in this case (hereinafter "the part seeking revocation of the reduced tax amount in this case") is unlawful.

3. Whether the remaining dispositions of this case are legitimate

A. The plaintiff's assertion

Since the provisional return on the return on the return of profit from sale and purchase of land, etc. filed a tax amount calculated by "transaction marginal profit, not "tax base" under Article 21 (2) 2 of the former Framework Act on National Taxes, the tax liability for the return of this case under Article 21 (1) 1 of the former Framework Act on National Taxes is established on December 31, 201 when the taxable period of the plaintiff ends, and Article 22 of the former Framework Act on National Taxes and Article 10-2 (1) of the Enforcement Decree of the same Act of May 2012, the remaining disposition of this case imposing an additional tax on the plaintiff, on the premise that the tax liability under the report of this case becomes final and conclusive on March 31, 2011, which is the date on which the return of tax liability is filed.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) The time when the tax liability under the instant case was established

A) Article 21 (1) 1 of the former Framework Act on National Taxes provides that "the obligation to pay income tax shall come into existence at the end of the taxable period," and Article 21 (2) 2 of the same Act provides that "income tax to be paid by the tax association on income tax or by preliminary return shall come into existence on the last day of the month in which the tax base thereof arises," and Article 69 of the former Income Tax Act provides that "the real estate dealer shall report the profit margin of land or buildings (hereinafter referred to as "land, etc.") and its tax amount to the head of the tax office having jurisdiction over the place of tax payment by the last day of the month in which the date of sale falls, as prescribed by Presidential Decree, by the date two months elapse from the last day of the month in which the date of sale or purchase falls." Article 21 (2) of the same Act provides that "the time when the tax return in this case comes into existence shall be the date of provisional return on return on income, such as land under paragraph (1)."

B) On the other hand, the plaintiff and the tax return of this case are limited to "transaction marginal profit" rather than "tax base", and therefore, the tax liability is asserted that Article 21 (2) 2 of the former Framework Act on National Taxes does not apply. Thus, the main text of Article 69 (3) of the former Income Tax Act provides that the calculated tax amount on profit margin on the land, etc. of a real estate dealer shall be the amount calculated by multiplying the sales price less necessary expenses calculated by applying Article 97 mutatis mutandis by the tax rate under each subparagraph of Article 104 (1) by the tax rate under each subparagraph of Article 104 (1). Therefore, the "profit margin on the land, etc." satisfies the meaning of the tax base under Article 2 (143) of the former Framework Act on National Taxes by measuring the taxable capacity as a monetary value under the above provisions of the Income Tax Act. Accordingly, it is reasonable to regard the return of profit accruing from sale of land, etc. under Article 69 of the former Income Tax Act as falling under the sentence and the tax standard under Article 2

2) The time when the tax liability by the instant declaration became final and conclusive

In light of the following circumstances, comprehensively interpreting the provisions of the former Framework Act on National Taxes, the former Enforcement Decree of the Framework Act on National Taxes, the former Enforcement Decree of the Income Tax Act, and the former Enforcement Decree of the Income Tax Act, tax liability arising from provisional return on return of profits, such as land, shall be determined at the time of filing the return pursuant to Article 22(1) of the former Framework Act on National Taxes and Article 10-2(1) of the Enforcement Decree of the same Act, and the remaining disposition of this case issued on March 31, 201, on which the Plaintiff’

(1) Article 69 (4) of the former Income Tax Act provides that "Articles 107 (2) and 114 shall apply mutatis mutandis to the calculation and determination of the calculated tax amount on profit margin on land, etc.", and Article 114 (1) and (2) of the same Act provides that where a transferor of assets fails to make a scheduled return, the head of a district tax office having jurisdiction over the place of tax payment or the director of a regional tax office having jurisdiction over the place of tax payment shall determine the transfer income tax base and the tax amount thereof, and in particular, where there are omissions or errors in the reported matters, the standard and tax amount of transfer income tax shall be corrected. The determination and correction of

② Article 127 (2) of the former Enforcement Decree of the Income Tax Act provides that when a real estate sales businessman intends to pay a expected amount of profit margin on land, etc., he/she shall pay it to the district tax office having jurisdiction over the place of tax payment, the Bank of Korea (including its agencies; hereinafter the same shall apply) or a postal agency along with an invoice for payment of profit margin on land, etc., as prescribed by Ordinance of the Ministry of Strategy and Finance, but the above provision alone does not make it difficult to interpret the obligation to pay profit margin on land, etc. arbitrarily, and the form of calculation statement for payment of profit margin on land, etc. (Evidence 2) under Article 100 (15) 16 of the Enforcement Rule of the Income Tax Act delegated by the above Enforcement Decree is different from all "total tax amount to be paid" and "tax amount to

③ The main text of Article 47-5(1) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010; hereinafter the same shall apply) provides that “where a taxpayer fails to pay national taxes by the deadline for payment under the tax-related Acts or the amount paid falls short of the amount to be paid, an amount calculated by applying the following formula shall be added to the amount to be paid or deducted from the amount to be refunded,” and Article 47-5(5) provides that “in applying paragraphs (1) and (2), no additional tax (limited to the portion on which an additional tax is imposed in relation to the payment by the preliminary return) related to the payment by the final return shall be imposed, and Article 47-5 of the former Framework Act on National Taxes provides that “in any of the following cases, an additional tax (limited to the portion on which an additional tax is imposed in

Under the premise that the tax is determined, when the tax is not implemented, the penalty tax is imposed on the tax payment and refund in good faith.

4. Conclusion

Therefore, the part that seeks revocation of the tax amount exceeding KRW 000 as to the disposition of this case among the lawsuit of this case is inappropriate, and it is dismissed, and the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.