[양도소득세등부과처분취소][공1992.4.1.(917),1061]
A. Whether the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) and Article 170(4)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989), the legal nature of Articles 72(3)5 and each of the above provisions are invalid against the principle of no taxation without
B. In applying Article 72(3)5 of the Regulations on the Management of Property Tax Investigation Affairs under Paragraph (a) above, whether it is necessary to examine and determine whether a real estate transferor has the purpose of speculation (negative)
A. Article 72 (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) provides for transaction designated by the Commissioner of the National Tax Service pursuant to Article 170 (4) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 980 of the National Tax Service Directive), although its form is administrative rules, it has a function to supplement the above provision of the Enforcement Decree of the Income Tax Act, and it has a legal effect as a legal order. In addition, Article 170 (4) 2 of the Enforcement Decree of the Income Tax Act provides a general standard for the matters delegated by the Act and again delegates the provisions for detailed matters to the Commissioner of the National Tax Service. Article 72 (3) 5 of the above Regulations on the Conduct of Property Tax Investigation cannot be deemed to have exceeded the limits of delegation. Since it is apparent that the provisions clearly provide that "when real estate is acquired and transferred within one year, it does not affect the legal stability of taxpayers or grant discretion to the Commissioner of the National Tax Service."
B. In applying Article 72(3)5 of the Regulations on the Conduct of Property Tax Investigation, it is not necessary to examine and determine whether a transferor of real estate has an object of speculation.
Article 170 (4) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989), Article 72 (3) 5 of the Regulations on the Management of Property Tax (amended by Presidential Decree No. 980 of the National Tax Service Directive)
A. Supreme Court Decision 87Nu654 delivered on March 22, 1988 (Gong198,710) 90Nu639 delivered on May 22, 1990 (Gong1990,1393). Supreme Court Decision 89Nu3731 delivered on February 9, 1990 (Gong1990,677), Supreme Court Decision 90Nu3997 delivered on October 10, 1990 (Gong190,2313), Supreme Court Decision 90Nu9810 delivered on June 11, 1991 (Gong191,1949)
Plaintiff
The Director of the Pacific District Office
Seoul High Court Decision 90Gu11983 delivered on July 31, 1991
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
1. We examine the Plaintiff’s ground of appeal No. 1.
Article 72 (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 1, 1989) provides for transaction designated by the Commissioner of the National Tax Service pursuant to Article 170 (4) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 980, Aug. 1, 1989), although its form is administrative rules, it has a function to supplement the provisions of the Enforcement Decree of the Income Tax Act, combined it with a function to supplement the provisions of the above Enforcement Decree of the Income Tax Act, and Article 170 (4) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 2, 1989) is effective as a legal order. Further, Article 72 (3) 5 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, May 29, 200).
2. We examine the second ground for appeal.
In applying Article 72 (3) 5 of the above Regulation on the Conduct of Property Tax Investigation, there is no need to examine and determine whether a real estate transferor has an object of speculation (see, e.g., Supreme Court Decision 89Nu3731, Feb. 9, 1990; Supreme Court Decision 90Nu3997, Oct. 10, 199). In applying Article 72 (3) 5 of the above Regulation, there is no need to change the above opinion at present. The judgment below to the same effect as the above opinion is justifiable, and there is no error of law of misunderstanding the legal principles, such as the theory
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.
Justices Song Man-man (Presiding Justice)