[양도소득세등부과처분취소][공1990.2.1(865),281]
Whether Article 115 (3) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) violates the principle of no taxation without the law, or is contrary to paragraphs 1 and 2 of the same Article (negative)
The Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) provides for the general matters concerning the determination of the standard market price in Article 115(1) and (2) of the Income Tax Act and Article 115(3) of the same Act at the time of transfer, and it is apparent that only the method of determination of the standard market price at the time of the acquisition of assets without the rate is delegated to the Ordinance of the Ministry of Finance and Economy because it does not fall under a specific area at the time of the acquisition. Thus, it cannot be deemed null and void because it comprehensively delegates the determination of the standard market price to the Ordinance of the Ministry of Finance and Economy, together with Article 60(1) and (2) of the same Act.
Article 60 of the Income Tax Act, Articles 115(1), 115(2), and 115(3) of the Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767 of August 1, 1989)
[Judgment of the court below]
The Director of the Pacific District Office
Seoul High Court Decision 88Gu3941 delivered on November 9, 1988
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
The gist of the grounds of appeal is that Article 115 (3) of the Enforcement Decree of the Income Tax Act delegates the matters delegated to the Presidential Decree under Article 60 (3) of the Income Tax Act comprehensively to the Ministry of Finance and Economy without any basis, so it is not in violation of the principle of no taxation without the law, but is invalid because it excessively contradicts Article 115 (1) and
Article 60 of the Income Tax Act delegates that the standard market price shall be determined by the Presidential Decree. Article 115 (1) of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 12767 of Aug. 1, 1989; hereinafter the same shall apply) provides that the standard market price shall be determined by the rate method if a taxable object is located in a specific area as determined by the Commissioner of the National Tax Service, and that the standard market price under the Local Tax Act shall be determined by the rate method if a taxable object is located in a specific area other than that determined by the Commissioner of the National Tax Service. Article 115 (1) and (2) of the Income Tax Act provides that the value converted by the method determined by the Ordinance of the Ministry of Finance and Economy shall be calculated as the standard market price at the time of the acquisition of a specific area unless the rate is determined by the rate. In full view of the above provisions, Article 115 (3) of the Income Tax Act provides that the standard market price at the time of transfer shall not be determined by the average market price at the time of the specific area.
The court below is justified in holding that the transfer value should be the value based on the conversion method under Article 115 (1) 1 (a) of the Enforcement Decree of the above Act, and the acquisition value should be the value based on the conversion method under Article 115 (3) of the above Enforcement Decree, because the land in this case belongs to a specific area at the time of the transfer, but does not belong to it at the time of the acquisition, and there is no error in the misapprehension of the legal principles as to the no taxation without law or delegation legislation, and the Supreme Court's precedent is related to the interpretation of Article 115 of the Enforcement Decree of the Income Tax Act before the amendment as of May 8,
Therefore, the appeal shall be dismissed, and the costs of appeal shall be borne by the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Song Man-man (Presiding Justice)