2. Litigation costs shall be borne by the plaintiff.

The plaintiff, as a social welfare foundation established for the purpose of operating mental health sanatoriums under Article 2 of the Social Welfare Services Act, established and operated mental health sanatoriums with 53,325 square meters prior to 53-1, 1024 square meters prior to 56-1,66-1,000 square meters prior to 96-1,00,000,000 won for 1,000 won for 2,000 won for 1,000 won for 2,000 won for 5,000 won for 1,000 won for 2,000 won for 2,000 won for 1,000 won for 3,00 won for 5,000 won for 1,00 won for 5,00 won for 2,00 won for 1,000 won for 4,00 won for 9,00 won for 1,000 won for 5,000 won for 16,000

2. Whether the disposition by transfer is lawful.

A. As to the application of Article 67-14(1) of the Steering Act

(1) The plaintiff and the defendant's assertion

The Defendant, as the Plaintiff corporation is a social welfare corporation established under the Social Welfare Services Act and directly used for its proper purpose, transferred the woodland, etc. to use for the proper purpose business of the pertinent corporation, but did not apply for exemption under Article 67-14(4) of the Lighting Act, and thus, it cannot be exempted from special surtax pursuant to paragraph (1) of the same Article. Thus, the instant taxation is lawful.

Although the plaintiff did not apply for the above reduction or exemption under the Act, in transferring the forest land, etc., the plaintiff merely obtained permission from the competent authority for the disposal of the basic property of the corporation, and even the purport of the above provision of the Act is to guarantee the activities of the social welfare corporation by reducing or exempting special surtax in case the social welfare corporation transfers the land, etc. used directly for its proper purpose to use for the proper purpose of the corporation's proper purpose. The plaintiff's transfer of the forest land, etc. is a new land purchase fund for the establishment of the mental health sanatorium because it does not obtain any permission for the alteration of the form and quality for the establishment of the mental health sanatorium in this case. The plaintiff used the land for the proper purpose as the selling price of the forest. The plaintiff was in Busan area where there are a lot of mental winners who do not know about the business of the social welfare corporation like the plaintiff, and the country is very large in Busan area where there are many people who do not know about the proper purpose of the project of the plaintiff, and the defendant's transfer of the forest land, etc. is unlawful in full view of the defendant's appeal.

(2) Determination

First of all, Article 67-14 (1) of the Early Reduction and Exemption Act provides that special surtax shall be exempted under the conditions as prescribed by the Presidential Decree with respect to income accruing from the transfer of land, etc. falling under any of the following subparagraphs for the proper purpose of the corporation, and Article 67-14 (1) of the same Act provides that a social welfare corporation established under the Social Welfare Services Act shall be the land, etc. directly used for its proper purpose, and the provisions of paragraph (4) of the same Article apply only to cases where the social welfare corporation grants an application for tax exemption under the conditions as prescribed by the Presidential Decree. The purport of the aforementioned provision is not only that the transferor imposes an obligation on the transferor to cooperate with the Government to submit documents necessary for the tax base and determination of the amount of tax, but also that the transferor shall not be exempted from special surtax unless there is an application for tax reduction and exemption within the prescribed period from the taxpayer (see Supreme Court Decision 92Nu17273, May 25, 193).

However, inasmuch as the fact that the Plaintiff, a social welfare foundation, transferred the land of the case directly used for its original purpose and did not apply for tax reduction or exemption pursuant to Article 67-14 of the Early Childhood Reduction and Exemption Act is acknowledged as above, the special surtax cannot be reduced or exempted pursuant to the provisions of the Early Childhood Reduction and Exemption Act merely because the Plaintiff asserts

B. As to determining the transfer value and acquisition value under the proviso of Article 59-2(3) of the Corporate Tax Act

(1) The plaintiff and the defendant's assertion

Second, the Plaintiff asserts that the transfer price and the acquisition price are determined by the Presidential Decree in cases where the transfer price and the acquisition price are unclear, and that the transfer price and the acquisition price are determined based on the standard market price at the time of transfer, respectively. Since the acquisition price of this forest land, etc. is unclear, the Defendant should determine the transfer price in accordance with the standard market price at the time of transfer and the acquisition price at the time of acquisition and impose a deferred taxation. As above, the Defendant asserts that the transfer price should be determined based on both the transfer price and the acquisition price and the acquisition price should be the actual transaction price and calculated by multiplying the acquisition price by the ratio calculated by dividing the

(2) Determination

(A) According to relevant laws and regulations, Article 59-2(3) of the Corporate Tax Act (amended by Act No. 4282 of Dec. 31, 1990) provides that transfer margin, which serves as the tax base of special surtax, shall be the amount obtained by deducting the acquisition value from the transfer value, the expenses directly paid for the transfer of land, and the acquisition value by the rate and holding period as determined by the Presidential Decree, respectively. However, where the transfer value and acquisition value are unclear, the transfer value and acquisition value shall be the amount based on the standard market price at the time of transfer determined as prescribed by the Presidential Decree and the amount based on the standard market price at the time of acquisition at the time of acquisition shall be the transfer value and acquisition value respectively. Article 124-2(6) of the Enforcement Decree of the same Act provides that the above standard market price shall be based on the standard market price stipulated in Article 115 of the Enforcement Decree of the Income Tax Act (amended by Act No. 4282 of May 1, 199).

(B) However, the previous Supreme Court (Supreme Court Decision 82Nu557 delivered on April 26, 1983, Supreme Court Decision 81Nu200 delivered on December 13, 1983, Supreme Court Decision 90Nu8527 delivered on July 12, 1991, Supreme Court Decision 90Nu8312 delivered on March 27, 1991, Supreme Court Decision 92Nu3762 delivered on July 24, 1992, etc.) provides that in calculating gains on transfer, which is the tax base of special surtax under Article 59-2 (3) of the Corporate Tax Act, where the transfer value and acquisition value are unclear, the transfer value and acquisition value based on the standard market price determined by the Presidential Decree shall be deemed respectively the transfer value and acquisition value, and in this case, where the transfer value and acquisition value are unclear, the transfer value and acquisition value shall be calculated on the basis of the standard market price as well as where either of the two values is unclear, and it shall not be calculated on the other basis.

In fact, in calculating the above gains on transfer, one of the transfer values and acquisition values is based on the actual transaction price, and the other is based on the standard market price, unless there are special circumstances to deem that the standard market price reflects the actual transaction price, it is extremely natural to view that the same does not meet the principle of equity.

However, Article 124-2 (7) of the Enforcement Decree of the Corporate Tax Act provides that the standard market price prescribed by the Presidential Decree under the proviso of Article 59-2 (3) shall be based on the standard market price under Article 115 of the Income Tax Act, i.e., the amount based on the amount based on the standard market price under the Local Tax Act, as seen above, the standard market price under the proviso of Article 59-2 (3) of the parent corporation shall be determined by the standard market price under this provision. In accordance with this provision, one of the actual transaction price is clear in the transfer price and the acquisition price, and the other is in calculating transfer margin based on the standard market price, such calculation of

In addition, the decision of the Supreme Court above is the interpretation of Article 124-2 (7) of the Enforcement Decree of the Corporate Tax Act, that is, the standard market price prescribed by the Presidential Decree under the proviso of Article 59-2 (3) of the Corporate Tax Act is determined by the amount based on the standard market price under the Local Tax Act pursuant to Article 124-2 (6)

However, Article 124-2(7) of the Enforcement Decree of the Corporate Tax Act provides that, with respect to the standard market price as prescribed by the Presidential Decree under the proviso of Article 59-2(3) of the Corporate Tax Act, where either of the transfer values or acquisition values is unclear, the value shall be determined by the aforementioned formula, converting the unclear value into the actual market price, and the formula of the standard market price is considerably accessible to the actual market price. Thus, where either of the transfer values or acquisition values is unclear, the obvious value in the case where either of the transfer values or acquisition values is unclear, shall be based on the future price and unclear value converted under Article 124-2(7) of the Enforcement Decree of the Corporate Tax Act, it shall not be deemed that the calculation of transfer margin is inconsistent with equity

Here, considering the purport of Article 59-2 (3) of the Corporate Tax Act, the transfer margin, which serves as the tax base of special surtax, shall be the amount obtained by deducting the acquisition value, etc. from the transfer value, but in cases where the transfer value and acquisition value are unclear, the transfer margin shall be the amount calculated by deducting the acquisition value, etc., from the actual transfer value, that is, the actual acquisition value, etc., and the amount based on the standard market price at the time of acquisition, as determined by the Presidential Decree. However, in cases where the transfer value and acquisition value are unclear, the transfer margin shall be the amount based on the standard market price as determined by the Presidential Decree. Thus, in cases where both the transfer value and acquisition value are unclear, both of them shall be calculated on the basis of the standard market price as determined by the Presidential Decree, and in cases where only one of them is unclear, the transfer value and acquisition value shall be calculated on the basis of the actual transaction value, and the clear and unclear one shall be calculated on the basis of the standard market price.

The above Supreme Court precedents also held that when calculating gains on transfer under Article 59-2 (3) of the above Corporate Tax Act, where either the transfer value and the acquisition value are unclear, both of the above two values should be calculated on the basis of the standard market price. However, the above provisions do not interpret that such purport is naturally included in the above provisions, and it is decided that the value of the side, which is unclear, shall be calculated on the basis of the standard market price and that the other one's actual transaction value shall not be fair. Thus, if there is no equity problem in relation to the standard market price as prescribed by the Presidential Decree, the provisions of the Corporate Tax Act should be interpreted to the effect that the transfer value and the acquisition value are clearly clear and unclear, as seen above, based on the standard market price as determined by the Presidential Decree.

(C) Thus, in addition to Article 124-2(6) of the Corporate Tax Act and Article 124-2(7) of the Enforcement Decree thereof, in case where both the transfer value and the acquisition value are unclear, the transfer value and the acquisition value of special surtax shall be calculated based on the standard market price pursuant to Article 124-2(6) of the Enforcement Decree of the Corporate Tax Act, which is the amount determined by the Presidential Decree, in case where both the transfer value and the acquisition value are unclear. If either the transfer value and the acquisition value are unclear, the transfer value or the acquisition value which is obvious shall be calculated based on the actual transaction value, and the other unclear one shall be calculated based on the value converted by the formula stipulated in Article 124-2(7) of the Enforcement Decree of the Corporate Tax Act, which is the amount based on the standard market price

In addition, this interpretation cannot be said to be contrary to the spirit of Article 124-2 (7) of the Enforcement Decree of the Corporate Tax Act or the spirit of the Framework Act on National Taxes, or to be contrary to the above provisions of the Corporate Tax Act.

Therefore, in calculating the transfer margin, the tax base of the special surtax by the Defendant, the transfer value shall be the actual transaction value, and the acquisition value, the actual transaction value of which is unclear, shall be the standard market value converted according to the formula stipulated in Article 59-2(3) of the Corporate Tax Act and Article 124-2(7) of the Enforcement Decree of the Corporate Tax Act, and it is legitimate to calculate the transfer margin, and otherwise, the Plaintiff’s assertion that both the transfer value and the acquisition value shall be calculated based on the standard market

3. Conclusion

If so, the plaintiff's claim for objection is dismissed as without merit, and it is so decided as per Disposition.

November 3, 1993

Judges Ansan-tae (Presiding Judge)