[양도소득세부과처분취소][공1990.6.15.(874),1191]
(a) Calculation method of transfer margin of land not belonging to a specific area at the time of acquisition;
B. Whether the Commissioner of the National Tax Service has determined a specific area and a rate before amendment of the law to calculate the transfer margin based on the standard market price by the rate method in a specific area (negative)
A. Article 115 (1) 1 and (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12154 of May 8, 1987) of the same Act provides that "a transfer assets have no rate of multiple rates to a specific area at the time of acquisition" are located in a specific area at the time of acquisition: Provided, That a transfer assets mean a case where there is no rate of multiple rates, and if they do not belong to a specific area at the time of acquisition, the transfer value and acquisition value in calculating transfer margin shall be calculated based on the standard market price of taxation under the Local Tax Act, even if they belong to a specific area at the time of transfer.
B. Article 115 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9229 of Dec. 30, 1978), which stipulates that the capital gains shall be calculated based on the standard market price by the rate method in a specific area, has been amended by Act No. 3096 of Dec. 5, 1978, and Article 115 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9229 of Dec. 30, 1978). According to the relevant provisions of the Income Tax Act and the Enforcement Decree of the same Act prior to the amendment, where the actual transaction price is unclear, the transfer price and acquisition price shall be calculated based on the standard market price at the time of transfer and acquisition. Thus, even if the Commissioner of the National Tax Service made a public notice of a specific area before the amendment of the above Act and subordinate statutes, it
A. Articles 23, 45, and 60 of the Income Tax Act (amended by Presidential Decree No. 12154 of May 8, 1989), Articles 23, 45, and 60 of the former Income Tax Act (amended by Act No. 3098 of December 5, 1978), Articles 23, 45, and 60 of the former Income Tax Act, Article 115 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9229 of December 30, 1978)
A. Supreme Court en banc Decision 86Nu576 delivered on January 20, 1987, 86Nu654 delivered on February 10, 1987, and 87Nu713 delivered on December 8, 1987, and 88Nu2083 delivered on January 31, 1989
Yu Mangal et al.
The Director of Budget Office
Seoul High Court Decision 89Gu6220 delivered on November 14, 1989
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
We examine the grounds of appeal.
Articles 23(4), 45(1) and 60 of the Income Tax Act provide that the transfer value and acquisition value shall, in principle, be determined based on the standard market price at the time of acquisition of transfer income tax. According to Article 115(1)1 and (3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12154, May 8, 1987) which enters into force at the time of transfer of the land of this case, the value assessed by the rate method shall be the standard market price for a specific area determined by the Commissioner of the National Tax Service. For assets located in the above specific area without the rate for the specific area at the time of acquisition, the value converted by the method determined by the Ordinance of the Ministry of Finance and Economy at the time of acquisition shall be the standard market price at the time of acquisition of transfer. In this case, the meaning that there is no rate for the specific area at the time of acquisition shall be determined at the time of acquisition, but if it is not included in the specific area at the time of acquisition, the transfer value and acquisition value shall be determined at 87. 18.18.6.18
Meanwhile, Article 115 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 3098, Dec. 5, 1978; Presidential Decree No. 11229, Dec. 30, 1978; Presidential Decree No. 115, Dec. 30, 1978; Presidential Decree No. 11229, Dec. 30, 1978; Presidential Decree No. 9229; the transfer value and acquisition value shall be calculated based on the actual transaction value, but if the actual transaction value is unclear, the transfer value and acquisition value shall be calculated based on the standard market price at the time of transfer and acquisition under the Local Tax Act; thus, even if the Commissioner of the National Tax Service publicly notifies a specific area before the amendment of the above Act and determines the rate, it shall not be deemed a legitimate public notice or determination of a specific area (see Supreme Court Decision 85Nu142, Sep. 9, 1986; 8Nu606, Apr. 9, 198985).
In the same purport, the court below's decision that the National Tax Service's notice 78-7 of February 15, 1978, which announced the land of this case 314-3 and 314-16 of Songpa-gu, Songpa-gu, Seoul as a specific area, is an announcement prior to the enforcement of Act No. 3098 and Presidential Decree No. 9229 of Feb. 15, 198, and thus, since it does not constitute a specific area at the time when the plaintiffs acquired the above land, the transfer value and acquisition value should be calculated according to the standard market price under the Local Tax Act in calculating transfer margin from the transfer of the above land, although the above land should be calculated according to the standard market price under the Local Tax Act, although the above land constitutes a specific area at the time of its acquisition, it is unlawful to impose transfer income tax by using the conversion method of acquisition value as the standard market
Justices Kim Yong-sung (Presiding Justice)