"whether the sales profit of the real estate sales businessman can be calculated on the basis of the standard market price";

"No real estate sales profit of real estate sales businessman shall be determined by the standard market price";

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

Whether "the profits from trading under Article 67 subparagraph 2 (b) of the former Enforcement Rule of the Income Tax Act on the calculation of the global income tax of real estate sales brokers can be determined by the standard market price (negative)," and summary of the decision

Article 82 (2) 2 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995) provides that the method of applying global income tax rate under Article 67 subparagraph 2 (a) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995) shall be indicated in the formula of calculation under Article 82 (2) 1 of the former Income Tax Act (amended by Act No. 4803 of December 22, 1994). Article 82 (2) 2 of the Enforcement Rule of the Act provides that the method of calculating transfer income tax under Article 82 (2) 2 of the Enforcement Rule of the Income Tax Act shall be the total amount of calculated global income tax under Article 92 (2) of the Act shall be the amount calculated by multiplying the profit margin by the tax rate under each subparagraph of Article 70 (3) of the Enforcement Rule of the Income Tax Act. The profit margin under Article 94(2) of the former Enforcement Rule shall be prescribed in Article 14(2).

Articles 82(2), 92(2), and 94 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994); Articles 141 and 142 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994); Article 67 subparag. 2(b) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995)

1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.

1. Basic facts

The following facts are not disputed between the parties, or they can be acknowledged in full view of the whole purport of the pleadings in the descriptions of Gap evidence 1, Gap evidence 2-1, 2-3, Eul evidence 4-1, 2, Eul evidence 1-3, Eul evidence 4-1, 2, Eul evidence 5, Eul evidence 6-1, 2, and Eul evidence 7-13, and there is no counter-proof.

가. 원고는 부동산매매업자로서 1994. 8. 20.경 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 블록 대지 544㎡ 지상에 상가 건물 2,485.19㎡를 신축하여 위 대지 및 상가(이하 이 사건 부동산 이라고 한다)를 분양하였다.

B. On May 31, 1995, the Plaintiff made a final return on the tax base of global income tax in 1994 with the amount of KRW 116,293,952, and other business income as KRW 32,052,90,00 after income deduction, the global income tax base is KRW 146,126,852, and the amount of global income tax was voluntarily paid by applying Article 70(1) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same shall apply) by applying 45%, which is the tax rate under Article 70(1) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994).

C. In making the final return on the tax base of global income tax in 1994, the Plaintiff calculated the global income tax according to the global income tax rate method under Article 82(2) of the Act, Article 134(2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994), and Article 67 subparag. 2(a) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995; hereinafter the Enforcement Rule) with respect to the sales income of the instant real estate.

D. According to Article 82(2) of the Act, Article 134(2) of the Enforcement Decree, and Article 67 subparag. 2 of the Enforcement Rule, the Defendant calculated the calculated global income tax in 194 by comparing the tax amount calculated by applying the global income tax rate method under Article 67 subparag. 2(a) of the Enforcement Rule with the tax amount calculated by applying the capital gains tax rate method under Article 67 subparag. 2(b) of the Enforcement Rule. However, when calculating the profit margin reported by the Plaintiff based on the profit margin reported by the Plaintiff, the amount calculated by applying the capital gains tax rate method under Article 67 subparag. 2(b) of the Enforcement Rule of the Enforcement Rule is higher than the calculated global income tax rate under Article 67 subparag. 2(b) of the Enforcement Rule of the Act of September 16, 196, the Defendant determined the global income tax amount for 194 and deducted the amount voluntarily paid by the Plaintiff and imposed the Plaintiff (including additional tax for late payment 22,71,417 won).

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The Defendant asserts that the instant disposition is a legitimate disposition in accordance with the grounds for and relevant laws and regulations.

(2) As to this, the Plaintiff asserts that the instant disposition of taxation should be revoked on the following grounds.

(A) Article 82(2) of the Act provides that in the calculation of the global income tax on a real estate sales businessman with any global income other than the business income accruing from the sale and purchase of land, etc., the global income tax under Article 70 and the total amount of the calculated tax under Article 92(2) shall be the global income tax, whichever is larger, compared with the total amount of the calculated tax for the relevant year under Article 92(2). Article 134(2) of the Enforcement Decree provides that the calculation of the calculated global income tax under Article 82 of the Act shall be made in accordance with the formula prescribed by the Ordinance of the Ministry of Finance and Economy. Article 67 of the Enforcement Rule provides that the calculation of the calculated global income tax under Article 134(2) of the Decree shall be made in accordance with the formula under each of the following subparagraphs, where there is any global income other than

(a) Method of tax rate of global income under item (a): (trade gains £­ Other necessary expenses + other global income) £­ Tax base of global income deduction = global income.

The global income tax base ¡¿ the global income tax amount.

(b) The tax rate of capital gains under item (b) : [The tax rate under each subparagraph of Article 70(3) of the Act 】 [the tax rate under each subparagraph of Article 70(3) of the Act 】 (other global income deduction ? the amount of global income deduction) 】 basic tax rate} calculated global income amount.

(B) The purport of the above provision is not to simply apply the profit margin on business income to the higher tax rate, but to separately compare the tax amount calculated by the method of taxation of transfer income tax with the higher tax rate. The Defendant calculated the tax amount by applying 60% higher than the global income tax basic rate and the transfer income tax rate to the sales price multiplied by the standard income rate, but it is in violation of the pertinent provisions of the Income Tax Act.

(C) Therefore, it is unlawful for the Defendant to correct the amount of taxes by misunderstanding the purport of the tax law, even though the Plaintiff voluntarily reported and paid lawful taxes, on the ground that the amount of taxes under the method of tax rate of global income tax rate exceeds the amount of taxes under the transfer income tax rate method.

B. Relevant statutes

Article 82 (2) of the Act: In calculating the amount of global income tax on a person having global income, other than the business income generated from the sale and purchase of land, etc., as a real estate sales businessman, the larger of the following amounts shall be the calculated global income tax:

1. Global income tax amount under Article 70; and

2. The sum for the concerned year of the calculated tax amount under Article 92 (2); and

Matters necessary for the calculation of global income tax on a real estate sales broker under paragraphs (1) and (2) shall be prescribed by Presidential Decree.

Article 134 (2) of the Enforcement Decree: The calculation of calculated global income tax under Article 82 of the Act shall be governed by the Ordinance of the Ministry of Finance and Economy.

Article 67 of the Enforcement Rule: The calculation of calculated global income tax under Article 134 (2) of the Decree shall be made by the following formula:

1. (Omission)

2. Where there exists any global income other than the income generated from the sale and purchase of land, etc., the larger of the amounts calculated under the following (a) and (b) shall be the calculated global income tax:

(a) (Sales marginal profit £­ Other necessary expenses + Other global income amount) £­ Tax base of global income deduction amount = global income tax base.

The global income tax base ¡¿ the global income tax amount.

(b) [The trade marginal profit £­ Transfer income deduction £­ Income deduction under Article 68 (2) of the Act) 】 Tax rate under each subparagraph of Article 70 (3) of the Act} £« (the amount of other global income ? income deduction) 】 basic tax rate = global income tax amount calculated}.

C. Determination

Therefore, the disposition of this case on the basis of the accounting books kept and recorded pursuant to Article 119 of the Act and the final return of the claimant's tax base based on documentary evidence is not subject to the estimation. In the case of loss, the plaintiff does not calculate and pay the tax amount according to the method of taxation of transfer income tax. Thus, the plaintiff's assertion based on the premise that the defendant applied the standard income rate

Article 82 (2) 2 of the Enforcement Rule provides that "The method of applying the global income tax rate under Article 67 (2) 2 (a) of the Act is indicated in the calculation method of Article 82 (2) 1 of the Act, and Article 82 (2) 2 of the Act provides that "the calculation method of the transfer income tax rate is indicated in the calculation method of Article 67 (2) 2 (b) of the Enforcement Rule, and Article 82 (2) 2 of the Act provides that the calculated global income tax rate shall be the total amount of the calculated global income tax under Article 92 (2)." Article 92 (2) of the Act provides that "the calculated global income tax rate shall be the amount calculated by multiplying the profit margin by the tax rate under each subparagraph of Article 70 (3) of the Enforcement Rule." Article 94 of the Act provides that the method of calculating the transfer income tax and the calculation method of the transfer income tax under Article 92 (4) and Article 142 of the Enforcement Rule provides for the calculation method of the transfer income tax under Article 97 (2) of the Enforcement Rule.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking the revocation of the disposition of this case is dismissed as it is without merit, and the costs of lawsuit are assessed against the losing plaintiff and it is so decided as per Disposition. (Attachment omitted)