Where capital gains tax is exempted pursuant to the Regulation of Tax Reduction and Exemption Act, the defense tax base at the time of voluntary payment of the defense tax together with the scheduled report on asset transfer marginal profits;

In full view of the purport of each provision of Article 98(1) of the Income Tax Act and Article 2(2), Article 4(1)2, Article 5(2), Article 5(1), and Article 5(3) of the Defense Tax Act, even in the case where the capital gains tax is exempted in full due to the Regulation of Tax Reduction and Exemption Act, if the expected return on the gains from the transfer of assets is made and only the defense tax is paid voluntarily, it is reasonable to interpret that the amount of the capital gains tax for which the expected return on the gains from the transfer of assets under Article 98 of the Income Tax Act has to be

Articles 2 and 4 of the Defense Tax Act, and Article 98 (1) of the Income Tax Act

Supreme Court Decision 86Nu262 Delivered on October 28, 1986

Attorney Kang Jong-soo, Counsel for the plaintiff-appellant

The director of the tax office.

Seoul High Court Decision 85Gu639 delivered on January 13, 1986

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal by the defendant litigant are examined.

Article 98 (1) of the Income Tax Act provides that, if a voluntary payment is made together with a scheduled return on gains from the transfer of assets, an amount equivalent to 10/100 of the calculated tax amount shall be deducted from such calculated tax amount. Article 2 (2) of the Defense Tax Act provides that a person who fails to impose income tax under the Regulation of Tax Reduction and Exemption Act, etc. shall be deemed a person liable for tax payment, and Article 14 (1) 2 of the same Act provides that the income tax which has been granted tax credit under the same Act from the calculated income tax amount under the Income Tax Act shall be the tax base of the same defense tax. Paragraph (2) of Article 2 provides that, with respect to a person liable for tax payment under Article 2 (2), the income tax shall be deemed to have been imposed on the portion on which the income tax is not imposed or has been reduced or exempted, and Paragraph (1) of Article 5 of the same Act provides that a person liable for tax payment shall also be exempted from such tax when he pays the relevant tax amount under the relevant tax Act. Paragraph (3) of Article 2) provides that the said Act shall apply mutatis mutandis to the said tax amount paid tax amount.

Therefore, the decision of the court below is justified in holding that the rejection of the revised return of this case was unlawful on the ground that the defendant cannot be allowed to grant tax credits under Article 98 of the Income Tax Act when determining the tax base of the defense tax of this case which constitutes a case where the capital gains tax is exempted in full under the Regulation of Tax Reduction and Exemption Act, and there is no error of law such as the theory of lawsuit.

Therefore, the appeal is dismissed, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yellow-ray (Presiding Justice)