[양도소득세부과처분취소][공1984.12.15.(742),1860]
(a) Criteria for calculating gains on transfer where data which can recognize the real transaction value are submitted in imposing transfer income tax under the former Income Tax Act (Act No. 3098, Dec. 5, 1978);
B. The assertion and submission of evidence supporting the amount of tax liability in a lawsuit disputing the illegality of taxation disposition
A. The purpose of Articles 23(4) and 45(1)1 of the former Income Tax Act (Act No. 3098, Dec. 5, 1978) and the main text of Article 170(3) of the Enforcement Decree of the same Act (Presidential Decree No. 9229, Dec. 30, 1978) is that transfer value and acquisition value shall be based on the actual transaction value, but if a person without a tax payment fails to make a preliminary return or final return on the capital gains, the transfer value and acquisition value may be determined based on the standard market price, which is the method of estimated taxation, by presumption that the actual transaction value is unclear, in case where materials that can be recognized as actual transaction value are submitted, the actual transaction value shall be based
B. In an administrative litigation disputing the illegality of taxation, the parties concerned may submit arguments and evidence supporting the objective amount of tax liability until the closing of argument, so even in an appeal litigation disputing the disposition of capital gains tax, the evidence proving the actual transaction price may be submitted until the closing of argument.
A. Article 23(4) of the former Income Tax Act (Act No. 3098, Dec. 5, 1978); Article 45(1)1 of the former Income Tax Act (Act No. 3098, Dec. 5, 1978); Article 170(3)2 of the former Income Tax Act (Presidential Decree No. 9229, Dec. 30, 1978); Article 14 of the Administrative Litigation Act; Article 136 of the Civil Procedure Act
Supreme Court Decision 83Nu553 delivered on December 27, 1983, 84Nu2 delivered on September 25, 1984, 84Nu106 delivered on September 25, 1984
[Judgment of the court below]
Head of Southern District Tax Office
Seoul High Court Decision 83Gu705 delivered on May 4, 1984
The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.
The defendant's appeal is dismissed, and the costs of appeal are assessed against the defendant.
1. We examine the grounds of appeal by the defendant litigation performer.
Examining the evidence admitted by the court below in light of the records, there is no error in the misapprehension of the legal principles as to this part of the court below's measures which recognized that the actual transaction price of the real estate of this case transferred to the non-party was 7,425,000 won.
2. We examine the Plaintiff’s attorney’s grounds of appeal.
According to the reasoning of the judgment below, the court below held that the disposition of imposition of capital gains tax on the excess portion is unlawful, since the gains from the transfer of the land of this case calculated by the standard market price exceeds the real transfer price, since the transfer of the land of this case exceeds the real transfer price, as long as the plaintiff did not make the marginal profits from the transfer of
According to the provisions of Articles 95 and 100 (3) of the Income Tax Act (Act No. 3098, Dec. 5, 1978), 23 (4), and 45 (1) 1, which was enforced at the time of the transfer of the real estate of this case, the transfer value and the acquisition value shall be based on the actual transaction price, and if the actual transaction price is unclear, it shall be based on the standard market price at the time of transfer or acquisition of the assets. According to the provisions of the main sentence of Article 170 (3) of the Enforcement Decree of the same Act (Presidential Decree No. 9229, Dec. 30, 1978) of the same Act, the transfer value and the acquisition value shall be based on
The purport of each of the above provisions is that the transfer value and acquisition value shall be based on the actual transaction value, but if a taxpayer fails to make the preliminary return or the final return on tax base, it shall be presumed that the actual transaction value is unclear and thus, it may be determined based on the standard market price, which is the method of estimated taxation, in the case of submission of data that can be recognized as the actual transaction value, the actual transaction value shall be based on the actual transaction value and shall not be based on the standard market price, which is the method of estimated assessment (see Supreme Court Decision 83Nu553, Dec. 27, 1983). In administrative litigation disputing the illegality of taxation, the parties concerned may submit arguments and evidence supporting the objective amount of tax liability until the closing of pleadings, so in an appeal litigation disputing the disposition of capital gains tax, the plaintiff may submit the evidence proving the actual transaction value until the closing of argument (see Supreme Court Decision 84Nu
According to the records, since the plaintiff submitted the evidence related to the actual transaction price at the time of acquisition, the court below should have judged the admissibility of evidence and the value of evidence and considered whether the plaintiff's assertion is legitimate. However, the court below's decision that the actual transaction price should not be claimed, and the transfer margin should be calculated according to the standard market price should not be calculated unless the return on the profit accruing from the transfer of real estate or the final return on the return on the return on the return on the transfer of real estate is erroneous and erroneous as to the interpretation of each of the above statutes on the transfer income tax.
3. Therefore, the defendant's appeal is dismissed, and the costs of appeal are assessed against the losing party. The part of the judgment below against the plaintiff is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating judges.
Justices Lee Lee Sung-soo (Presiding Justice)