[종합소득세부과처분취소][집29(3)특,92;공1982.1.1.(671) 49]
Whether Article 169-2 of the Income Tax Act applies to the portion of income in 1978 (affirmative)
If a disguised transaction was made for the portion of income in the year 1978, which was the first return after January 1, 1979, the differential rate prescribed in Article 169-2 (2) of the Enforcement Decree of the Income Tax Act may be applied pursuant to Article 7 of the Addenda to the Enforcement Decree of the Income Tax Act(2).
Articles 169-2, 2 and 7 of the Enforcement Decree of the Income Tax Act ( December 30, 1978)
Plaintiff
The litigation performers of the Do salary office;
Seoul High Court Decision 80Gu282 delivered on November 18, 1980
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed by the defendant on April 22, 1981).
According to the reasoning of the judgment below, Article 169-2 of the Enforcement Decree of the Income Tax Act was newly established by Presidential Decree No. 9229, Dec. 30, 1978, and Article 2 of the Addenda of the Enforcement Decree of the same Act provides that the amount of income accrued for the first time after January 1, 1978 shall begin to apply from the amount of income accrued after January 1, 1979, and the application of the differential rate under Article 169-2 (2) of the Enforcement Decree of the same Act may begin to apply from the amount of income accrued for the first time after January 1, 1979. This income is the income accrued before January 1, 1978, and therefore, Article 169-2 (2) of the above Enforcement Decree of the same Act cannot be applied to the differential rate based on the same Enforcement Decree, and therefore, in determining the amount of income on the plaintiff's total income, the taxation disposition of this case is unlawful.
However, Articles 159, 162, 164, 167, 169-2, and 183-2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9229 of Dec. 30, 1978) provide that the transitional provisions on its enforcement shall apply to the portion of income which was first reported after the enforcement date of this Decree, and Article 100 of the Income Tax Act provides that the income for the year concerned shall be calculated from May 1 through 31 of the following year to the portion of income which was first reported after the enforcement date of this Decree, and Article 169-2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9229 of Dec. 30, 197) provides that Article 159, 162, 164, 167, 169-2, and 183-2 of the Enforcement Decree of the Income Tax Act shall apply to the plaintiff's income for the first time after the enforcement date of the above Act.
In conclusion, the court below did not escape from the charge that there is an error of law that affected the conclusion of the judgment by erroneously applying the provisions of Article 7 of the Addenda to the Enforcement Decree of the Income Tax Act or the interpretation of the provisions by wrong, and therefore there is a ground for appeal pointing out this error.
Therefore, the judgment of the court below is reversed and the case is remanded to the Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.
Justices Lee Il-young (Presiding Justice)