Whether it is possible to deduct the land excess profit tax;

Since the abolition of the land excess profit tax is judged to be constitutional, the disposition to correct the transfer income tax by making the 10,468,126 of the land excess profit tax paid by the plaintiff as the tax credit amount is legitimate.

Article 26 (Land Excess Gains Tax Deduction from Tax Amount of Transfer Income Tax, etc.)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The defendant shall refund 17,054,664 won to the plaintiff, which exceeds the calculated tax amount of capital gains tax, out of 27,522,790 won of land excess profit tax paid by the plaintiff.

1. Details of the disposition;

A. On October 8, 2002, the Plaintiff transferred 00 square meters prior to 000-00 square meters (hereinafter “instant land”) owned by the Plaintiff on October 8, 2002, and voluntarily paid KRW 27,522,79,790 by deducting the necessary expenses, which was paid as land excess profit upon filing a voluntary report on capital gains tax to the Defendant, and calculating the capital gains tax by voluntarily paying KRW 5,049,760.

B. After that, the plaintiff filed a request for correction to the effect that the land excess profit tax, which was paid on June 26, 2003, was deducted as total tax amount, not as necessary expenses, and that exceeds the calculated amount of capital gains tax, was refunded. On August 28, 2003, the defendant made a request for correction to the effect that the land excess profit tax, which was paid on June 26, 2003, was refunded to the plaintiff within the scope of the calculated amount of capital gains tax under Article 26 (1) proviso of the former Land Excess profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994, which was repealed by Act No. 5586 of Dec. 28, 199, hereinafter referred to as the "former Land Excess Profit Tax Act") and Article 2 of the repealed Land Excess Income Tax Act (amended by Act No. 5586 of Dec. 28, 199; hereinafter referred to as the "amended Act") was reduced to 2000 years.

C. After that, on March 22, 2004, the defendant accepted the plaintiff's complaint's claim Ga, B, C, and E on March 22, 2004 while the lawsuit of this case was pending, and reviewed the first correction disposition, and then corrected the calculated tax amount from 12,776,365 to 10,468,126 won (hereinafter "the correction disposition of this case"). However, there was no change in the tax credit for land excess profit tax within the limit of the calculated amount of capital gains tax, and thus, the calculation result was the same as the first correction disposition.

Grounds for Recognition: Facts without dispute, Gap's evidence 1, 2, Eul's evidence 1 to 10, Eul's evidence 2-1, 2, Eul's evidence 3-1 to 4, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Although the Plaintiff’s total amount of KRW 27,522,790 paid for the instant land ought to be deducted from the transfer income tax amount, the Plaintiff’s deduction of KRW 10,468,126 among them is unconstitutional due to its violation of the purport of the Constitutional Court’s decision of unconstitutionality as to the Land Excess Gains Tax Act, and thus, is unlawful. Therefore, the Defendant shall refund the Plaintiff the tax amount exceeding the transfer income tax amount to KRW 17,054,664.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The Constitutional Court rendered a constitutional decision on March 30, 2006 on the portion of "where idle land, etc. is transferred within three years from the date of the decision of land excess profit tax" and Article 26 (1) 1 of the former Land Tax Act that "where idle land, etc. is transferred within three years from the date of the decision of land excess profit tax, the transfer income tax shall be deducted in full by 100%, and where the relevant land is transferred within six years after three years (in this case, 60% of the land excess profit tax shall be deducted from the transfer income tax, and no tax credit shall be granted at all thereafter, but the amount of land excess profit tax already paid shall be deducted only from the cost of the land excess profit tax," and Article 26 (1) 2 and (4) of the former Land Tax Act that "where idle land, etc. is transferred within three years from the date of the decision of land excess profit tax" and Article 26 (1) 1 of the same Act that "where the land excess profit tax is transferred within three years from the date of taxation.

(2) In the case of this case, according to the proviso of Article 26 (1) of the former Land Tax Act, the new amount of deduction shall not exceed the payable amount of capital gains tax. Article 2 of the Addenda of the repealed Act provides that "the previous provisions shall apply to the land excess profit tax imposed or to be refunded under the former Land Excess Gains Tax Act at the time of the enforcement of the Act." As seen above, the repealed Act ruled that it is constitutional, and the proviso of Article 26 (1) of the former Land Excess Gains Tax Act is also unconstitutional in light of the purport of the decision of the above Constitutional Court. Thus, it is difficult to view that the proviso of Article 26 (1) of the former Land Excess Income Tax Act is unconstitutional in light of the above purport of the decision of the Constitutional Court. Thus, the disposition of capital gains tax shall be lawful by correcting the calculated amount of capital gains tax (12,776,365 won in the case of the first revised disposition, 10,468,126 won in the case of the instant revised disposition) of capital gains tax.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

public official law, order of law,

(1) The former Land Excess Profit Tax Act (amended by Act No. 4807 of Dec. 22, 1994, and repealed by Act No. 5586 of Dec. 28, 1998)

Article 26 (Land Excess Gains Tax Deductiond from Tax Amount of Transfer Income Tax, etc.)

(1) In calculating transfer income tax or special surtax on any income accruing from the transfer of idle land, etc. on which the land excess profit tax is levied, the land excess profit tax determined under the provisions of Articles 16 and 23 shall be deducted from the relevant transfer income tax or special surtax the amount calculated by applying the following rates to such tax amount: Provided, That this shall not apply where the deductible tax amount exceeds the payable amount of the transfer income tax or special surtax:

1. Where idle land, etc. is transferred within one year from the day on which the land excess profit tax is determined: 10/100;

2. Where idle land, etc. is transferred within 3 years and 6 years from the day on which the land excess profit tax is determined: 60/100.

(4) In making a tax base return under the provisions of Article 105 or 110 of the Income Tax Act on any income accruing from the transfer of idle land, etc. on which the land excess profit tax is imposed, if the owner of idle land, etc. adds the land excess profit tax to the cost necessary for the transfer income tax in making a tax base return under the provisions of Article 105 or 110 of the Income Tax Act, or deducts the amount from the gains on transfer of special surtax in making a tax return under the provisions of Articles 59-5 through 59-7 of the Corporate Tax Act, the provisions of paragraph (1) shall not apply,

【Land Excess Profit Tax Act (Law No. 5586, Dec. 28, 1998)

The Land Excess Profits Tax Act shall be repealed.

Addenda

Article 2 (General Transitional Measures) With respect to the land excess profit tax imposed or to be refunded under the previous Land Excess Gains Tax Act at the time this Act enters into force, the previous provisions shall apply.