If the recognized tax amount of taxation exceeds the reasonable tax amount, the scope of revocation.

If the recognized tax amount of a tax assessment exceeds the legitimate tax amount due to a mistake in the calculation method of the tax base, only the excess portion is illegal, so the tax assessment should be revoked, and the revocation of the entire tax assessment is unlawful.

Article 70 (3) of the Enforcement Decree of the Income Tax Act Article 170 (2)

[Judgment of the court below]

Head of Mapo Tax Office

Seoul High Court Decision 80Gu567 delivered on August 20, 1981

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, if the plaintiff purchased 176,80,000 won for the land of October 24, 197 with non-party other than the non-party and registered the ownership transfer under the name of non-party for convenience, and newly constructed the building at the expense of 309,709,764 won. The plaintiff invested 56,50,000 won for the land of this case and the building were to be transferred to other 75,000,000 won until September 26, 1978, before the above non-party acquired 75,000,000 won for the land of this case and the building were to be converted to 176,80,000 won for the land of this case, the court below recognized that the tax base of the transfer income tax was unlawful by considering the difference between the land of this case and the building of this case to be converted to 18,500,000 won for the purpose of calculating the acquisition value of each tax.

However, in this case where there is a dispute over the different portion of the tax amount recognized in this case, whether the tax amount in this case is unlawful or not shall be determined by whether the tax amount exceeds the legitimate tax amount. Thus, even if the recognized tax amount in this case exceeds the legitimate tax amount, the excess portion should be deemed to be unlawful, and the whole tax amount in this case should not be deemed to be unlawful. Therefore, the court below which recognized the fact that capital gains have occurred to the Plaintiff is recognized as illegal. Accordingly, even though the court below should have revoked only the excessive portion, if it is recognized as exceeding the recognized tax amount in this case by reviewing the reasonable amount of the capital gains tax, as seen above, if it is recognized as exceeding the recognized tax amount in this case, the whole tax disposition was revoked on the ground that the calculation method of the tax base was erroneous, as seen in the above, shall be deemed to have committed an unlawful act due to insufficient deliberation

In addition, according to the records, it is evident that the Plaintiff filed a claim for the revocation of only the amount exceeding KRW 30,367 and the amount exceeding KRW 3,036 of capital gains tax (section 108, Chapter 117 of the record). As such, the judgment of the court below that revoked the entire taxation, as seen above, shall be deemed to be unlawful even if it did not apply to the parties.

Therefore, the judgment of the court below is reversed, and the case is remanded to Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Il-young (Presiding Justice)