[양도소득세등부과처분취소][공1994.3.15.(964),857]
Article 170 (4) 2 (a) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12877 of Dec. 30, 1989) where the transaction falls under any of the categories referred to in Article 170 (4) 2 (b) of the same Act, but the method of calculating transfer margin
In light of the purport of Article 170 (4) 2 and 3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12877, Dec. 30, 1989) and Article 170 (4) 2 and 3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12877, Dec. 30, 1989), the tax authority may exclude the transaction from the object of the application of the actual transaction price if the transfer margin based on the actual transaction price falls short of the amount of transfer margin based on the standard market price, and it is difficult to allow it from the perspective of fair taxation because it is merely a general trader or more on the ground of the speculative act to be regulated by the Act, even if the transaction falls under the category provided in subparagraph 2 (a) above, if the transfer margin based on the actual transaction price falls short of the amount of transfer margin based on the standard market price.
Articles 23(4) and 45(1)1 of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990); Article 170(4)2 and 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12877 of Dec. 30, 1989)
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Domin-young and 1 other, Counsel for plaintiff-appellant-appellant-appellant-appellant-appellant-appellant-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellee-Appellee-
Plaintiff
Head of the Cleanness Tax Office
Seoul High Court Decision 92Gu32137 delivered on June 15, 1993
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. According to the reasoning of the judgment below, the court below found that the plaintiff purchased the real estate of this case from the non-party 1 on February 1, 1989 and transferred it to the non-party 2 on July 15, 1989, and the plaintiff did not make the preliminary return on transfer margin and the final return on transfer margin on August 4 of the same year, and found that the defendant issued the disposition of this case by calculating the transfer income tax according to the standard market price at the time of acquisition and transfer. The court below rejected the plaintiff's assertion that the transfer of the real estate of this case is unlawful in calculating the transfer margin under the standard market price even though it is possible to confirm the actual transaction price and it should be calculated based on the actual transaction price, despite the fact that the plaintiff purchased the real estate of this case within one year after the acquisition, and the actual acquisition price is confirmed, but there is no evidence to acknowledge the establishment of the transaction price at the time of transfer, and as a result, it cannot be viewed that the actual transfer price cannot be determined as unlawful because it is difficult to determine the transfer price under the standard market price.
2. Article 170(4)2 of the Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767, Aug. 1, 1989) provides that the purpose of legislation is to regulate speculative transactions under the same subparagraph in a relatively unfavorable manner than other general transactions by recognizing exceptions to the principle of the standard market price with respect to speculative transactions in order to regulate speculative transactions. Accordingly, if there is no speculative nature in the proviso, it shall be excluded from the application of the actual transaction price even in cases falling under any item of the same subparagraph. Furthermore, Article 170(4)3 of the Enforcement Decree of the Income Tax Act provides that the transferor of assets shall submit evidential documents so that he/she can be calculated based on the actual transaction price by maintaining the standard market price principle by restricting the deadline for submission of evidential documents, thereby establishing an exception to the principle of the substance over form. Thus, even if a taxpayer fails to properly assert the actual transaction price under the same subparagraph and then makes it difficult to view that such transactions fall short of the scope of the actual transaction price under Article 170(5).
According to the records, when the plaintiff purchased and sold the real estate of this case to the above non-party 2, the remaining payment date was set on August 4, 1989, and according to the facts established by the court below, the registration of ownership transfer was completed on the same day (the remaining amount is deemed to have been liquidated at that time). Thus, the Enforcement Decree of the Income Tax Act should be applied after the above amendment, which was enforced on August 1, 1989, and in the above transaction, the plaintiff asserts that the transfer margin based on the actual transaction price does not reach the transfer margin based on the standard market price without making a preliminary return or a final return on transfer margin, and thus, the defendant's disposition of this case based on the standard market price cannot be deemed unlawful since it cannot be deemed that the defendant's disposition of this case was made based on the actual transaction price to be excluded from the application of the actual transaction price,
Although the reasoning of the court below is not appropriate, the conclusion of rejecting the plaintiff's claim seeking the revocation of the disposition of this case is legitimate. Therefore, it cannot be said that there was an error of law by misunderstanding legal principles affecting the judgment of the court below or misunderstanding of facts.
The precedents pointed out by the theory of lawsuit are related to Article 170 (4) 2 of the Enforcement Decree of the Income Tax Act and Article 72 (3) of the former Regulations on the Management of Property Tax (National Tax Service Directive No. 980) prior to the amendment, and thus, it cannot be viewed as an appropriate precedent in this case.
3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Young-young (Presiding Justice)