(a) Whether the income accrued from the reclamation works of public waters falls under Article 20 (1) 5 of the Income Tax Act and Article 33 (1) 2 of the Enforcement Decree of the same Act (affirmative);

(b) The case holding that the liquidation distributed amount additionally received is the business income when withdrawing from the partnership relationship while the reclamation of public waters was jointly implemented, and settled accounts according to the profit distribution rate; and

(c) Income subject to non-taxation under subparagraph 6 (k) of Article 5 of the former Income Tax Act (wholly deleted by Act No. 4019, Dec. 26, 1988);

A. The Public Waters Reclamation Corporation shall be deemed to fall under the "civil construction industry not classified on the basis of the Korean Standard Industrial Classification Table publicly notified by the President of the Economic Planning Agency pursuant to Article 39 of the Enforcement Decree of the Income Tax Act." Thus, the income from such reclamation works shall be the income generated from the civil construction industry under Article 20 (1) 5 of the Income Tax Act and Article 33 (1) 2 of the Enforcement Decree of the Income Tax

B. The case holding that the "income amount distributed according to the ratio of profit and loss distribution where a joint business is operated," under Article 56 (2) of the Income Tax Act, as the "income amount distributed according to the ratio of profit and loss distribution where a joint business is operated" is deemed as business income when the construction is completed while the public waters reclamation project was jointly implemented.

C. The provisions of subparagraph 6 (k) of Article 5 of the former Income Tax Act (amended by Act No. 4019, Dec. 26, 1988) do not stipulate that capital gains shall be exempted from taxation, unless it is provided that capital gains are exempt from taxation.

(a) Article 20 (1) 5 of the Income Tax Act, Article 33 (1) 2, and Article 39 (b) of the Enforcement Decree of the same Act; Article 56 (2) of the Income Tax Act; Article 56 (2) 3 of the same Act; Article 5 subparagraph 6 (k) (k) of the former Income Tax Act; and Article 4019 of the same Act;

[Judgment of the court below]

Head of North Daegu Tax Office

Daegu High Court Decision 90Gu1282 delivered on July 24, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

On the first ground for appeal

1. According to the facts acknowledged by the court below, while the plaintiff entered into a partnership contract with the non-party 1 who is the reclamation licensee for the public waters of this case and the non-party 2, who is his wife, to jointly execute the above reclamation work and distribute profits from the construction work at the ratio of 4:6, the plaintiff left the partnership relationship at the time of completion of the construction work and settled accounts in accordance with the above profit distribution ratio, and received additional settlement distribution funds in the decision. The Public Waters Reclamation Corporation is deemed to fall under "public construction work which is not classified monthly" under the Korean Standard Industrial Classification Table publicly notified by the President of the Ministry of Finance and Economy pursuant to Article 39 of the Enforcement Decree of the Income Tax Act. Thus, the income from the above reclamation work shall be deemed to be income from the civil construction work under Article 20 (1) 5 of the Income Tax Act and Article 33 (1) 2 of the Enforcement Decree of the same Act, and the above settlement distribution funds received by the plaintiff shall not be deemed to be a violation of the principle of allocation of profits and losses from the partnership."

2. Article 5 subparagraph 6 (k) of the Income Tax Act (amended by Act No. 4019, Dec. 26, 1988) provides that capital gains shall not be taxed, but it shall not be taxed on such business income. In this case, even though the plaintiff and the non-party 1 couple agreed to bear various taxes due to the above reclamation work between the plaintiff and the non-party 1 couple, even though the above non-party 1 couple agreed to pay the above non-party 1 couple, it shall not be deemed that the defendant violated the principle of trust and good faith to make the tax disposition against the plaintiff or violated the taxpayer's property right by wrong interpretation

3. According to the evidence No. 3 (the evidence No. 1-5, No. 6) of this case, the plaintiff can be known that he received the settlement distribution other than the amount distributed at king according to the agreed profit distribution ratio. Thus, the court below is just in maintaining the tax disposition of this case by calculating the plaintiff's income according to the profit distribution ratio. Since the amount distributed by the plaintiff is not only the settlement distribution amount, or the agreement of the above profit distribution ratio is null and void, the plaintiff's calculation of the amount of income according to the profit distribution ratio is against the principle of substantial taxation. It cannot be accepted.

Therefore, the judgment of the court below cannot be said to have erred by misapprehending the legal principles like the theory of lawsuit, and there is no reason to discuss.

On the second ground for appeal

According to the records, the court below recognized that the plaintiff omitted income from the reclamation work of this case at the time of filing the final return of global income tax in 1988, and did not have the account books and documentary evidence, and that the defendant's taxation of this case is legitimate, is just, and there is no violation of the rules of evidence such as the theory of lawsuit. There is no reason to interpret

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

Justices Lee Jae-chul (Presiding Justice)