B. Whether Article 124-2 (7) of the Enforcement Decree of the Corporate Tax Act is invalid

C. Whether Article 124-2 (9) of the Enforcement Decree of the Corporate Tax Act is invalid

B. Article 124-2(7) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 1295, May 1, 1990) provides that "in applying Article 59-2(3) of the Act, where either the transfer value and the acquisition value are unclear, the unclear value shall be determined based on the amount converted according to the following formula" is not only inconsistent with the provisions of the former Corporate Tax Act (amended by Presidential Decree No. 4282, Dec. 31, 1990) but also the method of calculating transfer margin which is not permitted under the interpretation of Article 59-2(3) of the former Corporate Tax Act (amended by Presidential Decree No. 4282, Dec. 31, 1990), and there are no grounds for delegation to the effect that

C. Article 124-2 (9) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 14468 of Dec. 31, 1994) (amended by Presidential Decree No. 14468 of Dec. 31, 1994) was amended to "unexplicied" under Article 124-2 (7) of the former Corporate Tax Act (amended by Presidential Decree No. 1295 of May 1, 1990), as the concept of standard market price under the Income Tax Act has changed, the formula was revised to "unexplicied". Paragraph (7) was revised to "the wind newly established by Presidential Decree No. 13195 of Dec. 31, 1990"; however, in applying Article 59-2 (3) of the former Corporate Tax Act (amended by Presidential Decree No. 4804 of Dec. 22, 199), since one of the transfer value and acquisition value is unclear, there was no special provision under Article 524-2 (3) of the former Corporate Tax Act amendment.

1. As to the first claim (a claim for exemption)

In full view of the provisions of Article 67-3 (1) 1 and (4) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of Dec. 31, 1993) and Article 55-3 (4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14084 of Dec. 31, 1993), if an educational foundation established under the Private School Act intends to be exempted from special surtax on income accruing from the transfer of land, etc. owned by it for the purpose of using it for educational business, it shall submit an application for exemption from special surtax within the reporting period of tax base and tax amount provided for in Article 26 of the Corporate Tax Act, and if the above application is not submitted within the reporting period, it shall not be exempted from special surtax (amended by Act No. 4666 of Jul. 25, 1989; 88Nu10751 of Apr. 27, 1990; 29.7.97.

2. As to the second point (as to how to calculate the gains on transfer), the second point

According to the reasoning of the judgment below, the court below rejected the Plaintiff’s assertion that the Defendant’s calculation of transfer margin was unlawful, even though the transfer value and acquisition value should be calculated based on the standard market price in the case where the transfer value is clear, but the transfer value and acquisition value are calculated based on the above method, regardless of the fact that the Defendant calculated transfer margin by using the above method, the transfer value and acquisition value should be calculated based on the standard market price. The court below rejected the Plaintiff’s assertion that the Defendant’s calculation of transfer margin was unlawful.

"Where the transfer value and acquisition value are unclear" in the proviso of Article 59-2 (3) of the Act shall be deemed to include not only the cases where both the transfer value and acquisition value are unclear, but also the cases where only one of the two values are unclear in equity. Thus, in the interpretation of the proviso of Article 59-2 (3) of the Act, the transfer value and acquisition value of special surtax shall be calculated on the basis of the standard market price as prescribed by the Presidential Decree in cases where both the transfer value and acquisition value are unclear, and where either of them is unclear, both the transfer value and acquisition value shall be determined on the basis of the standard market price as prescribed by the Presidential Decree, and the transfer value and acquisition value shall not be deemed to have been determined on the basis of the standard market price. Thus, the transfer value clearly expressed on the basis of the actual transaction value and the face value of which are unclear shall not be deemed to have been determined on the basis of the standard market price. Thus, the transfer value calculated on the basis of Article 124-2 (7) of the Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 1295, May 1, 1990, 1990).

However, by Presidential Decree No. 1295 of May 1, 1990, the phrase "not known" was amended as "not clear", and the formula was amended as to the difference in the concept of standard market price under the Income Tax Act. On the wind newly established by Presidential Decree No. 13195 of December 31, 1990, Paragraph 7 was revised as Paragraph 9 of the above Article, but Paragraph 9 of the same Article is amended as Paragraph 7 of the same Article, except for the change in the number of Paragraph 3 of this Article, if one of the transfer value and the acquisition value is unclear, it is obvious that Article 124-2 (7) of the Decree is not different from that of Article 124-2 (7) of the Decree, and since the proviso of Article 59-2 (3) of the Income Tax Act as the mother corporation does not have any effect, the amendment is still null and void, barring special circumstances.

Nevertheless, the court below's determination that the disposition of this case, which calculated transfer margin under Article 124-2 (9) of the Decree, is lawful on the premise that the disposition of this case is valid, shall not be deemed to have erred by misapprehending the legal principles as to Article 59-2 (3) of the Act or by erroneously interpreting Article 124-2 (9) of the Decree, and it is obvious that this affected the result of the judgment, and therefore, there is a ground

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)