2. The costs of appeal shall be borne by the Plaintiff.

Evidence Nos. 1 through 3, Eul evidence Nos. 1 through 7, 8-1, 2-2, and the purport of the whole pleadings

A. On December 27, 1997, Gangnam ○○ and 21 others entered into a contract with ○○○○○-dong ○○○○○-dong ○○○○-dong ○○○○-dong ○○○○-dong ○○○, which is created and sold as a housing site, to sell KRW 729,630,00 for the parcelling-out price (hereinafter “instant parcelling-out contract”). At that time, Korea paid KRW 72,963,00 for the down payment to Korea Land Corporation.

B. On February 28, 1998, the Plaintiff and Song ○○○ (hereinafter referred to as the “Plaintiff, etc.”) received the right to acquire the land subject to sale under the instant sales contract by paying KRW 72,963,00 for acquisition price to the Plaintiff, etc. and 21 others (hereinafter referred to as the “instant sales right”), and then changed the purchaser’s name under the approval of the Korea Land Corporation, with the approval of the Korea Land Corporation. The acquisition share ratio is 1/23 of the Plaintiff, and Song ○○ is 12/23 of the Plaintiff.

C. From February 1, 1999 to June 1, 1999, the Plaintiff et al. paid a total of KRW 80,600,750 as part of the intermediate payment, and delayed the payment of the remainder.

D. On November 20, 2001, the Plaintiff et al. acquired the instant parcelling-out right with Kim○○ and Kim○○○○ (hereinafter referred to as “Seoul○, etc.”) and entered into an agreement with the Plaintiff et al. to pay KRW 150,000,000 to the Plaintiff et al. (hereinafter referred to as the “instant agreement”). The Plaintiff et al. acquired the instant parcelling-out right, but the Plaintiff et al. additionally incurred due to delayed payment of the purchase price under the initial agreement as the acquisition price, and the Plaintiff et al. took over all the amount arising from the instant parcelling-out contract until the date of changing the name of the buyer in the future, Kim○, etc. (hereinafter

E. Under the approval of the Korea Land Corporation on December 4, 2001, Kim ○, etc. changed the name of the buyer in the instant sales contract in its future, and thereafter, according to the instant agreement, 278,565,189 won (hereinafter referred to as the “instant overdue interest”) arising from the delay in the payment of the purchase price by the Plaintiff, etc. that occurred until December 4, 2001, paid to the Korea Land Corporation for delay of KRW 150,00,000 to the Plaintiff, etc.

F. On June 20, 2005, the Plaintiff filed a return on the tax base of transfer income tax on the transfer of the sales right of this case with the Defendant on February 28, 1998, with the purport that he acquired the sales right of this case in KRW 348,373,000 on December 4, 2001 and transferred it in KRW 344,347,000 on December 4, 2001.

G. However, on August 1, 2006, the defendant calculated the acquisition value of the plaintiff's share (11/23's share) among the sale rights of this case as 73,443,532 won (72,963,000 won + 80,600,750 won) X 11/23; the transfer value as 204,965,959 won (150,000 + 278,565,189 won) [150,000 + 278,565,189 won]; transfer margin and transfer income amount as 131,52,427 won; tax base as 13,373,827 won (the total amount of income); and it should be imposed on the plaintiff with the notice of the principal income tax for 2001, as well as the additional tax for negligent return (the total amount of income); and it should be imposed on the plaintiff.

2. Whether the instant disposition is lawful

A. The Party’s assertion

As to the Defendant’s assertion that the disposition of this case is lawful on the grounds of the above disposition and relevant statutes, the Plaintiff asserted that the disposition of this case is unlawful on the following grounds.

(1) The agreement of this case concluded between the plaintiff et al. and the plaintiff et al. on February 28, 1998 and the plaintiff et al. on or around November 20, 201 entered into with Kim○, et al. on or around November 2001 shall be reduced to the "former Income Tax Act" under Article 88 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002; hereinafter referred to as the "former Income Tax Act") rather than the "transfer contract where assets are actually transferred for price," but not the "transfer contract where the former contractor's status is actually transferred for price," and the disposition of this case by the plaintiff et al. is not an act of transfer for price as it constitutes the acquisition of the former contractor's status without compensation, and thus, it is unlawful for the plaintiff et al. to acquire the transfer right of this case from the transfer to the plaintiff et al. on or around 30, 2005.

(2) The instant overdue interest is included in the actual transaction price required for the Plaintiff, etc. to acquire the instant sales right. Thus, in calculating gains on transfer from the transfer of the instant sales right by the Plaintiff, etc., it shall be included in the necessary expenses under Article 97 of the former Income Tax Act, and if it is not included in the necessary expenses

(3) The proviso of Article 163 (1) 3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17456, Dec. 31, 2001; hereinafter referred to as the "former Enforcement Decree of the Income Tax Act") provides that "However, the amount equivalent to interest accrued due to the delay of the due date for payment of the transaction price under the original agreement shall not be included in the cost for acquisition." This is a provision on taxable objects and scope of taxation, which must be provided by the law in accordance with the constitutional principle of no taxation without law, but is not effective as it is prescribed by the Presidential Decree, which is a subordinate law without a clear delegation of the Constitution or law, and therefore, the defendant's disposition of this case, which did not include the overdue interest in this case on the basis of

(4) The transfer value refers to the actual amount of income that the transferor actually received or intended to receive as the price for the transfer of assets. The overdue interest in this case is not the transfer value since the plaintiff et al. did not actually receive and did not intend to receive. Thus, the disposition of this case, which calculated capital gains by including it in the transfer value, is unlawful

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether it is a transfer under Article 88 of the former Income Tax Act

(A) As seen in the above disposition, the Plaintiff et al. paid KRW 72,963,00 as the acquisition price to the ○○○ and 21 others, and acquired the instant sales right, and received KRW 150,000 in return for the transfer of the instant sales right to Kim○○, etc., and thus, the Plaintiff et al. received KRW 150,000 in return for the transfer of the instant sales right. As such, the acquisition or transfer of the instant sales right by the Plaintiff et al. constitutes a case where the right to acquire the instant

(B) In addition, the overdue interest of this case is included in the transfer value as follows.

(C) Therefore, the Plaintiff’s assertion that the transfer of the instant sales right or the transfer of the instant sales right does not constitute a transfer act under Article 88 of the former Income Tax Act because it constitutes a contract acceptance, or that the instant overdue interest did not entirely occur to the Plaintiff, etc. on the premise that the transfer value does not include the transfer value.

(2) Whether it constitutes necessary expenses under Article 97 of the former Income Tax Act

(A) According to the proviso of Article 163(1)3 of the former Enforcement Decree of the Income Tax Act, the amount equivalent to the interest additionally incurred due to the delay in the payment of the transaction price under the initial agreement does not constitute the cost for acquisition. The overdue interest in this case is additionally unfair due to the delay in the payment of the purchase price under the initial agreement by the Plaintiff, etc., and thus, it can be deemed the actual transaction price

(B) Therefore, on the premise that the instant overdue interest falls under the acquisition value under Article 97 of the former Income Tax Act, it is reasonable to include it in necessary expenses in calculating gains on transfer or capital gains from the transfer of the instant sales right by the Plaintiff, etc., and that if it is not included in necessary expenses, it goes against the principle of substantial taxation. This part of the

(3) The validity of the proviso of Article 163(1)3 of the former Enforcement Decree of the Income Tax Act

(A) The proviso of Article 163(1)3 of the former Enforcement Decree of the Income Tax Act is effective as a provision based on delegation under Article 97(5) of the former Income Tax Act, which provides that "the necessary matters concerning the scope of actual transaction values required for acquisition, and the calculation of necessary expenses, such as necessary matters, shall be prescribed by Presidential Decree."

(B) Therefore, the Plaintiff’s assertion on this part is without merit that the Presidential Decree, which is a subordinate law, is stipulated without clear delegation of matters to be stipulated by the constitutional principle of no taxation without law.

(4) Whether the instant overdue interest is included in the transfer value

(A) Under Article 96(1) of the former Income Tax Act, the transfer value of assets means the actual transaction value between the transferor and the transferee.

(B) As seen in the background of the above disposition, Kim○, etc. entered into the agreement of this case with the Plaintiff, etc. around November 20, 201, and they decided to take over the damages for delay additionally borne by the Plaintiff, etc. as a result of delay in the payment of the purchase price under the initial agreement in return for acquiring the sale price of this case. As such, it is reasonable to view that the overdue interest of this case as the damages for delay is included in the actual transaction price between the Plaintiff, etc. and Kim○, etc. as the damages for delay.

(C) Therefore, since the interest interest of this case is included in the transfer value, the plaintiff's assertion on this part is without merit.

(5) Sub-decisions

Ultimately, the Plaintiff acquired the Plaintiff’s share (1/23/23/10) in 73,443,532 won (153,563,750 won X 11/23) and transferred it to 204,965,959 won (428,565,189 won X 11/23), and thus, the Defendant’s disposition of this case based on such premise is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just and it is so decided as per Disposition.

[Tgu District Court 2006Guhap3157, 2007)]

2. Litigation costs shall be borne by the plaintiff.

The following facts are either in dispute between the parties, or in view of Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1 through 7, Eul evidence Nos. 8-1, and Eul evidence No. 8-2, it can be acknowledged, and there is no other counter-proof.

A. In around 197, the Korea Land Corporation decided to create and sell a lot of land of ○○-dong ○○○-dong as a housing site. On December 27, 1997, between the Korea Land Corporation and ○○○-dong ○○○-dong ○○-dong ○○○-dong ○○-dong ○○-dong ○○-dong ○○-dong ○○-dong dong ○○-dong (hereinafter “land subject to parcelling-out”) and paid KRW 729,630,00 (hereinafter “instant parcelling-out contract”). Around that time, the sales contract was concluded between the Korea Land Corporation and ○○-dong ○○-dong ○○-dong ○○ ○○-dong ○○ ○○-dong ○○ ○○-dong ○○ ○

B. Around February 1998, the Plaintiff and Song ○○ paid KRW 72,630,000 for the acquisition price to the Plaintiff and the Plaintiff and the Plaintiff paid KRW 21,000. On that day, under the approval of the Korea Land Corporation, the buyer’s title as to the right to sell the instant case was changed in the future, and on February 1, 199 and February 1, 199 and June 1, 199, paid KRW 80,600,750 in total as part of the intermediate payment out of the purchase price for three times, and delayed the payment of the remainder. However, the Plaintiff and Song ○○○ shares in the acquisition price of the instant right are 11/23 shares of the Plaintiff and 12/23 shares of Song ○○○.

C. On November 20, 2001, the Plaintiff and Song○○ concluded an agreement with Kim○○ and two other parties on the transfer of the instant parcelling-out right, and between Kim○○ and two other parties, on the basis of the acquisition of the instant parcelling-out right, to take over the obligation of the Plaintiff and Song○○’s delay due to the delay in the payment of the parcelling-out price by the date of their change in its future, and to pay KRW 150,000 to the Plaintiff and Song○○○ (hereinafter “instant agreement”).

D. On December 4, 2001, Kim○-○ et al., two persons changed the name of the buyer on the right to parcel out in this case under the approval of the Korea Land Corporation on December 4, 2001, and take over the obligation of delay damages equivalent to KRW 278,565,189 due to the payment of the purchase price by the Plaintiff and Song○-○, which occurred by the date of the agreement of this case, and paid KRW 150,000 to the Plaintiff and Song○-○.

E. If so, the Plaintiff and Song ○○ acquired the instant sales right on February 28, 1998 in KRW 153,563,750 [the amount paid to 72,963,00 won (the amount paid to 21,00 won, etc.) + 80,60,750 won (the intermediate payment paid to the Korea Land Corporation)], and then transferred it on December 4, 2001 to 428,565,189 won [150,00,000 won (the amount paid from 278,565,189 won) + 278,565,189 won (the amount of damages paid by 2,00 won, etc.).

F. However, on June 20, 2005, the Plaintiff filed a return on the tax base of capital gains tax on the transfer of the sales right of this case with the Defendant on December 4, 2001, stating that he/she acquired the sales right of this case in KRW 348,373,000 and transferred it in KRW 344,347,00 on December 4, 2001, thereby incurring loss of transfer of the sales right of this case in KRW 4,026,00.

G. Based on the facts acknowledged earlier, on August 1, 2006, the Defendant calculated the transfer value of the Plaintiff’s share (11/23 shares) with 73,443,532 won (153,563,750 won X11/23) (428,565,189 won), as 204,965,959 won (428,565,189 won X 11/23), gains from transfer and gains from transfer, as 131,52,427 won, and the tax base was calculated with 133,373,827 won (the sum of other income) from among the Plaintiff’s share in the sale right of this case. The Defendant notified the Plaintiff of the disposition of this case’s transfer income tax, additional tax on negligent return and additional tax on negligent payment, 81,178,090 won (hereinafter referred to as “the date of imposition”).

2. Whether the instant disposition is lawful

The Defendant asserts that the instant disposition is lawful as a disposition in accordance with the relevant statutes. As to this, the Plaintiff asserts as follows, and thus, I will examine it in turn.

A. Whether the transfer is made without compensation

The plaintiff's transfer income tax should be imposed at the time of actual transfer of the asset under the provisions of Article 88 of the Income Tax Act, and the plaintiff's transfer and transfer right of 72,93,00 won and payment of 80,60,750 won to 20,00 won and 153,563,750 won in total (72,963,600 + 80,750 won in 70,000) of transfer and sale right of 20,000 won before transfer and sale right of 153,563,750 won (the plaintiff's transfer and sale right of 153,563,750 won and 150,000 won before transfer and sale right of 153,563,750,000 won and the plaintiff's transfer and sale right of 20,000 won are not asserted to transfer and sale right of 30,000 won.

(b) Effects of the proviso of Article 163 (1) 3 of the Enforcement Decree of the Income Tax Act;

The plaintiff argues that "the proviso of Article 163 (1) 3 of the Enforcement Decree of the Income Tax Act provides that the amount equivalent to interest additionally accrued due to the delay in the payment date of the transaction price under the original agreement shall not be included in the cost for acquisition." This is a provision concerning the object of taxation and the scope of taxation, which shall be stipulated by the law in accordance with the constitutional principle of no taxation without any clear delegation of the Constitution or law, and therefore, it is not effective since the Presidential Decree, which is a subordinate law without any clear delegation of the Constitution or law, is determined by the Presidential Decree. Therefore, in calculating the transfer margin or the transfer income of this case on the basis of the above proviso, the defendant's disposition of this case that did not include 278,565,189 won, which

However, Article 163(1)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17456, Dec. 31, 2001; hereinafter referred to as the "Decree") provides that "the actual transaction price required for the acquisition" in the proviso of Article 97(1)1 (a) and the main sentence of Article 97(1)1 (b) of the Act refers to the sum of the following amounts," and Article 163(1)1 of the Decree provides that the amount equivalent to the cost for acquisition calculated by applying the provisions of Article 89(1) of the Decree mutatis mutandis to the actual transaction price required for the acquisition under subparagraph 1 of the same subparagraph 3 shall be the item "the actual transaction price required for the acquisition", and where the transaction price becomes final and conclusive by adding the amount equivalent to the cost for acquisition under subparagraph 1 to the cost for acquisition under the payment method under the agreement between the parties, the amount equivalent to the interest shall not be included in the cost for acquisition. Therefore, the plaintiff's disposition or disposition under the proviso to Article 163(1)3 of the above shall not be accepted.

(c) Necessary expenses;

In calculating gains on transfer or capital gains from the transfer of the right to sell the instant case by the Plaintiff and Song ○○○, the Plaintiff asserted that the instant disposition by the Defendant, which calculated gains on transfer or capital gains from the transfer of the right to sell the instant case by subtracting KRW 278,565,189 from the necessary expenses and calculated gains on transfer or capital gains from the transfer of the right to sell the instant case by the Plaintiff and Song ○○○○○, even though the Plaintiff and Song ○○, inevitably incurred expenses for acquiring the right to sell the instant case, shall be included in the necessary expenses.

According to the facts found earlier, 278,565,189 won and damages for delay borne by the Plaintiff and Song○○○○○, were incurred due to delay in the payment of the sale price, and it cannot be included in necessary expenses in calculating gains on transfer or capital gains from the transfer of the sale price of this case by the Plaintiff and Song○○○○ upon delegation under Article 97(5) proviso of Article 163(1)3 of the Decree pursuant to the delegation of Article 97(5) of the Act. Thus, the Plaintiff’s assertion also cannot be accepted.

(d) Transfer value:

The plaintiff asserts that "in calculating gains on transfer or capital gains from the transfer of the right to sell in this case by the plaintiff and the plaintiff and two other parties, the plaintiff and the Song○○○○'s 278,565,189 won shall not be included in the transfer value, even though they did not include 278,565,189 won in the transfer value, the disposition of this case by the plaintiff and Song○○ ○ shall be unlawful and revoked."

On the other hand, Article 96 (1) of the Act provides that "The transfer value of assets, , , , and , shall be the actual transaction value between the transferor and transferee at the time of the transfer of the assets concerned (hereinafter "actual transaction value")." According to the above facts, the plaintiff and Song ○○ entered into the agreement between Kim ○ and 2, around November 20, 2001, and Kim ○○ and two others about the right to sell this case in return for acquiring the right to sell this case, the plaintiff and Song ○○ shall take over the obligation of late payment of the purchase price at the time of their change and pay 150,000,000 won to the plaintiff and Song ○○○○○, and therefore, the transfer value of the right to sell this case by the plaintiff and Song ○○○○ shall not be considered to be included in the transfer price at the time of the transfer of the assets in question, and it shall not be considered to be included in the plaintiff's obligation of 150,000,00 won and shall not be accepted from the plaintiff and Song 286.

E. Sub-decision

According to the facts found above, on February 28, 1998, the plaintiff acquired the plaintiff's share (11/23 share) in the sale right of this case 73,443,532 won (153,563,750 won X 11/23) and transferred it to 204,965,959 won (428,565,189 won) on December 4, 2001. Based on the above facts, the defendant calculated transfer margin, transfer income, tax base, tax amount, etc. of the plaintiff's share (11/23 share) in the sale right of this case pursuant to the provisions of the relevant Acts and subordinate statutes, and then the defendant issued the disposition of this case on December 4, 2001. The defendant's disposition of this case is legitimate disposition based on the relevant Acts and subordinate statutes.

3. Conclusion

Therefore, the plaintiff's claim of this case seeking its revocation on the ground that the disposition of this case is unlawful is dismissed. It is so decided as per Disposition.

[Supreme Court Decision 2008Du1214 (No. 27, 2008)]

The costs of appeal are assessed against the Plaintiff.

Therefore, the appeal is dismissed in accordance with Article 5 of the above Act. It is so decided as per Disposition by the assent of all participating Justices on the bench.

public official law, order of law,

former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002)

Article 88 (Definition of Transfer)

(1) For the purpose of subparagraph 3 of Article 4 and this Chapter, "transfer" means that any assets are actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., regardless of any registration or enrollment concerning such assets. In such cases, where a donee takes over any obligation of a donor of an onerous donation (excluding cases falling under the main sentence of Article 47 (3) of the Inheritance Tax and Gift Tax Act), the portion equivalent to the amount of such obligation in the donation amount

Article 94 (Scope of Transfer Income)

(1) Transfer income shall be the following incomes generated in the relevant year:

2. Income accruing from transfer of any right to the real estate falling under any of the following items:

(a) Right to acquire real estate (including the right to acquire a building upon completion of its construction and its appurtenant land);

Article 96 (Transfer Price)

(1) The transfer price referred to in Article 94 (1) and (2) shall be the standard market price at the time of transfer of the assets concerned: Provided, That where the assets concerned fall under any of the following subparagraphs, it shall be based on the actual transaction price:

2. Where the relevant assets are rights to acquire real estates under the provisions of Article 94 (1) 2 (a);

Article 97 (Calculation of Necessary Expenses in Transfer Income)

(1) In calculating gains on transfer of a resident, necessary expenses to be deducted from the transfer value shall be as follows:

1. Acquisition value:

(a) In case of assets prescribed in Article 94 (1) 1 and 2, the standard market price at the time of the acquisition of the assets concerned; and

Provided, That in cases falling under any of subparagraphs of Article 96 (1), it shall be based on the actual transaction price required for the acquisition of such assets.

(3) The calculation of necessary expenses for capital gains under paragraphs (1) and (2) shall be made as follows:

1. In cases where the acquisition value is based on the provisions of the proviso of subparagraph 1 (a) or (b) of paragraph (1), the necessary expenses shall be the amount calculated by adding the amount of subparagraphs 2 through 4 of paragraph (1) to the amount of the proviso of subparagraph 1 (a) and the amount of item (b) of the same subparagraph (where it falls under paragraph (2), the

(5) Matters necessary for calculation of necessary expenses, such as the scope of actual transaction price required for acquisition and gift tax amount shall be prescribed by Presidential Decree.

Enforcement Decree of the former Income Tax Act (amended by Presidential Decree No. 17456 of Dec. 31, 2001)

Article 163 (Necessary Expenses for Transferred Assets)

(1) The term "actual transaction price required for acquisition" in the proviso to Article 97 (1) 1 (a) and (b) of the Act means the sum of the following amounts:

1. Values correspond to the cost for acquisition computed by applying mutatis mutandisArticle 89 (1) (including the discounted debt estimated by the present value under Article 89 (2) 1, but excluding the amount exceeding the market price under the unfair act and calculation);

3. In applying subparagraph 1, where the transaction price is determined by adding the amount corresponding to the cost for acquisition under the method of payment under an agreement between the parties concerned, the relevant amount equivalent to the interest shall be included in the cost for acquisition: Provided, That the amount equivalent to the interest additionally accrued due to the delay in the time for payment of the transaction

December 14, 2007