[방위세부과처분취소][공1991.9.1.(903),2179]
(a) whether, in imposing and assessing the special surtax on and assessing the special surtax, each transfer margin of the real estate transferred, other than the total tax base for the year to which it belongs, includes the specific contents of the tax base (negative);
(b) Method of calculating gains on transfer where either of the transfer or acquisition values is unclear;
(a)In the case of a tax item taxed on the total income of the transfer income generated in the year to which such income belongs, such as the defense tax on the special surtax, it is not necessary to enter the tax item in the entry of the tax base only into the total tax base resulting from the total income of the year to which such income belongs and the year to which such income belongs, even the gains on transfer of each transferred real
B. In the calculation of transfer margin, which is the tax base of special surtax, in the case of a corporation under the interpretation of the proviso of Article 59-2(3) of the former Corporate Tax Act (amended by Act No. 3270 of Dec. 13, 1980), where either of the transfer and acquisition values is unclear, the transfer and acquisition value shall be calculated based on the standard market price.
A. Article 9(1) of the National Tax Collection Act, Article 6 subparag. 2 of the Defense Tax Act (on January 1, 1991), Article 37 of the Corporate Tax Act, Article 99 of the Enforcement Decree of the Corporate Tax Act, Article 59-2(3) of the former Corporate Tax Act (amended by Act No. 3270, Dec. 13, 1980);
B. Supreme Court Decision 86Nu201 decided Nov. 22, 1988 (Gong1989,25) 87Nu662 decided Dec. 22, 1987 (Gong1988,363) 90Nu8312 decided Mar. 27, 1991 (Gong191,1305)
[Defendant-Appellant] Cho Sung-sung Foundation, a foundation
The Head of Seoul Seongbuk Tax Office
Seoul High Court Decision 85Gu1305 delivered on August 28, 1990
The defendant's appeal and the plaintiff's incidental appeal are all dismissed.
Each expense of an appeal and an incidental appeal shall be borne by the appellant and the incidental appellant respectively.
1. We examine the Plaintiff’s grounds of incidental appeal.
According to Article 9(1) of the National Tax Collection Act, when collecting a national tax, a notice stating the year of taxation, tax items, amount of tax and grounds for calculation thereof, time limit and place of payment of the national tax shall be issued to the taxpayer. According to Article 37 of the Corporate Tax Act and Article 99 of the Enforcement Decree of the Corporate Tax Act, which is subject to Article 6(2) of the Defense Tax Act and Article 99 of the Enforcement Decree of the same Act, a notice shall be given to the taxpayer along with the tax base and the calculation statement of the tax amount. Thus, in the case of a tax item imposed on the total income of the transfer income of the year to which the tax base belongs, such as the special surtax pro rata tax amount, it does not need to be written even on the transfer margin of each transferred real estate, which is the specific content of the tax base, because the tax notice in this case does not include transfer margin of each real estate, which is the basis for calculation of the tax base.
The judgment of the court below that held in the same purport is just, and there is no error in the misapprehension of legal principles as to the procedural requirements for taxation such as the theory of lawsuit, and the precedents of party members cited in the theory of lawsuit conflict with the purport of the case and thus cannot be an appropriate example. There is no reason to argue.
2. We examine the defendant's grounds of appeal.
According to Article 13 of the Addenda of the Corporate Tax Act (Act No. 2686) as amended on December 31, 1974 and Article 7 of the Addenda of the Enforcement Decree of the same Act, the acquisition value of real estate acquired before December 31, 1967 shall be the standard market price when the current market price or market price is unknown. According to Article 13 of Addenda of the Corporate Tax Act (Act No. 3472) as amended on December 31, 1981 and Article 7 of Addenda of the Enforcement Decree of the same Act, the acquisition value of real estate acquired before December 31, 1974 shall be the standard market price when the current market price or market price cannot be known, and under the interpretation of the proviso of Article 59-2(3) of the Corporate Tax Act (amended by Act No. 3270 of Dec. 13, 1980), the acquisition value of real estate acquired before December 31, 198 shall be the standard market price.
According to the reasoning of the judgment below, the court below calculated gains from the transfer and acquisition of all of the land of this case based on the standard market price on the ground that there is no evidence that the appraised value of the acquisition of the land of this case on the report submitted by the plaintiff on January 1, 1979 and February 21, 1983 by the Busan City and the Culture Gazette was the market price of the land of this case as of January 1, 1968 or as of January 1, 1975. In light of the records, in the above fact-finding and judgment of the court below, there is no ground for determining the acquisition value based on the conversion price in the case where the acquisition value is not known due to the legitimate special surtax pro rata defense rate, and therefore there is no error of incomplete deliberation
3. Accordingly, the defendant's appeal and the plaintiff's incidental appeal are all dismissed, and the costs of appeal and the incidental appeal are assessed against the appellant and the incidental appellant. It is so decided as per Disposition by the assent of all participating judges.
Justices Park Jong-dong (Presiding Justice)