[1] In a case where an increase or decrease disposition is made after a taxation was made, whether only the increase or decrease disposition is subject to dispute (affirmative)

[2] Whether the disposition of imposition of capital gains tax on the whole taxable year including the taxable object subject to the determination of the expected transfer margin after the expected transfer margin was made constitutes correction of increase (affirmative)

[1] In a case where an increase or decrease disposition is made after a taxation was made, the increase or decrease disposition is not the original disposition but the tax base and tax amount in the original disposition are included in the original disposition, and is re-determined as a whole by including only the tax base and tax amount in the original disposition. Thus, the original disposition is naturally extinguished by absorbing the increase or decrease disposition, and only the increase or decrease disposition is subject to litigation.

[2] In cases where two or more assets are transferred or two or more assets are transferred in the same taxable year, the relevant transfer income tax shall not be calculated by the number of transferred assets or the number of transferred assets, but shall be calculated and imposed by calculating a single transfer income tax for all assets, in light of the legal principles that the transfer income tax should be assessed by calculating a single transfer income tax for all assets, including the subject of the expected decision on transfer margin, after making a decision on the expected transfer margin,

[1] Article 44 of the Framework Act on National Taxes and Article 19 of the Administrative Litigation Act / [2] Articles 105, 110(1), 113(1), and 114(2) of the former Income Tax Act (amended by Act No. 5580, Dec. 28, 1998)

[1] Supreme Court Decision 89Nu3724 delivered on Nov. 24, 1989 (Gong1990, 154) Supreme Court Decision 91Nu9596 delivered on May 26, 1992 (Gong1992, 2051) Supreme Court Decision 95Nu758 delivered on Nov. 10, 1995 (Gong1995Ha, 395Ha, 3952), Supreme Court Decision 97Nu16329 delivered on May 28, 199 (Gong1999Ha, 1305), Supreme Court Decision 98Du16149 delivered on Sept. 8, 200 (Gong200Ha, 2141) / [2] Supreme Court Decision 97Nu2989 delivered on Nov. 29, 198; 200Du98979 delivered on Sept. 29, 2098

Plaintiff (Attorney Lee Hong-hoon, Counsel for the plaintiff-appellant)

Head of Eastern Tax Office

Busan High Court Decision 99Nu3546 delivered on November 3, 2000

The part of the judgment of the court below concerning the expected decision on transfer margin is reversed, and the lawsuit against this part is dismissed. The remaining grounds of appeal by the plaintiff are dismissed. The costs of appeal against the dismissed part and the total costs of appeal against the dismissed part are all

1. As to the expected transfer margin decision

We examine the Plaintiff’s grounds of appeal ex officio.

In a case where an increase or decrease is made after a taxation was made, the original disposition is not to determine the tax base and tax amount in the original disposition, but to determine a single tax base and tax amount as a whole by including only the tax base and tax amount in the original disposition, rather than to determine the portion exceeding the tax base and tax amount in the original disposition. Thus, the original disposition becomes extinct as a matter of course by absorbing the increased or decreased disposition, and only the increased or decreased disposition is subject to litigation (see, e.g., Supreme Court Decisions 98Du16149, Sept. 8, 200). In a case where two or more assets are transferred in the same taxable year or two or more assets are transferred in the same taxable year, the transfer income tax is not to be imposed by calculating the transfer income tax amount for all assets, not by each transferred or the number of transferred assets, in light of the legal principle that the transfer income tax should be imposed by calculating the expected transfer margin amount (see, e.g., Supreme Court Decision 86Nu61788, Feb. 98, 1988).

According to the records, on April 4, 1996, the plaintiff transferred land of 10 square meters, including the Gangseo-gu Busan ( Address 1 omitted), bank No. 331 square meters, etc. (hereinafter "the land of this case") to Busan Metropolitan City on December 16, 1996, the defendant made a decision on the scheduled transfer margin of this case on December 16, 1996, the plaintiff transferred land of 13 square meters, including 40 square meters, before Busan Gangseo-gu ( Address 2 omitted), to Busan Metropolitan City on July 5, 1996, to Busan Metropolitan City, to make a final return of tax base of transfer income tax, defective in filing a final return of transfer income tax, and the head of Yangyang Tax Office imposed and notified the transfer income tax for all of the above land on January 4, 1998 by calculating the tax base and tax amount of transfer income tax for the transfer income tax for 196. Thus, the part seeking cancellation of the plaintiff's scheduled transfer margin of this case shall be deemed unlawful as a disposition for correction.

Nevertheless, the court below rejected the plaintiff's claim based on the determination of expected transfer margin of this case as a disposition subject to appeal litigation. Thus, the court below's judgment as to this part is erroneous in the misunderstanding of legal principles as to a disposition subject to appeal litigation, and thus, it cannot be reversed. However, since this part is sufficient for a party member to destroy it, the part of the court below's judgment as to expected transfer margin decision is reversed, and the lawsuit

2. Special rural development tax

원심판결 이유를 기록에 비추어 살펴보면, 원심이 원고가 이 사건 토지를 1981. 7. 25. 또는 1988. 12. 13. 각 취득한 사실, 원고는 1965. 5. 1. ○○초등학교 교사를 시작으로 1970. 4. 29.까지 △△·□□초등학교에서 교사로 재직하였고, 같은 해 4월 30일부터 1973. 2. 26.까지 ◇◇농협단위조합의 서기로 일하다가, 같은 해 3월 30일 ☆☆☆☆학교 교사로 임용된 후, 1997. 2. 28.까지 ▽▽▽▽학교·◎◎◎◎학교의 교사로 재직하였으며, 같은 해 3월 1일부터는 ◁◁◁◁학교 교감으로 재직하고 있는 사실을 인정한 다음, 이에 비추어 보면 원고가 이 사건 토지를 자경하였다고 할 수 없고, 한편 원고의 생계를 같이 하는 가족이 이 사건 토지를 경작하였는지에 관하여는 그 배척하는 증거들을 제외하고 달리 이를 인정할 증거가 없다고 판단한 것은 정당하고 거기에 상고이유에서 주장하는 바와 같은 자경농민에 대한 법리오해 및 채증법칙 위배로 인한 사실오인의 위법 등이 없다.

3. Therefore, the part of the judgment of the court below concerning the expected decision on transfer margin is reversed, and the lawsuit is dismissed. The remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Jin-hun (Presiding Justice)