B. Whether special long-term holding deduction under Article 23 (2) 2 of the Income Tax Act should be legally deducted even if a taxpayer's petition for deduction is not available (affirmative)

(b) Special long-term holding deduction under Article 23 (2) 2 of the Income Tax Act shall be naturally deducted even if the person liable for tax payment does not have any special claim for deduction.

We examine the reasoning of the judgment of the court below in a comparison with relevant Acts and subordinate statutes. The court below held that the transfer date of the land of this case is June 27, 1989, which is the date of the balance payment agreement entered in the relevant sales contract, and determined the transfer price and the standard market price of the acquisition price, the measures to apply the method of evaluating the standard market price in a specific area on the ground that the transfer date is after June 24, 1989, the location of the land of this case is designated and announced as a specific area, and there is no error of law

The precedent cited by the theory of theory is different from the case of this case, and it cannot be viewed as precedent. There is no reason to discuss.

2. We examine the second ground for appeal.

A. According to the reasoning of the lower judgment, the lower court determined that the Defendant’s determination of the acquisition and transfer value of the instant land based on the standard market price and calculated the transfer margin as KRW 37,90,846, and that it was lawful to impose the instant transfer income tax, etc. against the Plaintiff by calculating the tax amount based on the amount of special deduction for transfer income and deduction for transfer income as

B. However, under Articles 23(2), 23(4), and 45(1) of the Income Tax Act, where transfer margin calculated by deducting necessary expenses, such as acquisition value, from the transfer value, exceeds the real transfer value, the actual transfer value under the principle of substantial taxation should be limited (see, e.g., Supreme Court Decision 91Nu360, May 28, 1991; Supreme Court Decision 87Nu483,484, Dec. 22, 1987). In this case, the Plaintiff asserted that the real transfer value of the land of this case is KRW 18,90,000 or KRW 17,00,000,000. Thus, the court below should have deliberated and finalized the actual transfer value, and should have examined whether the actual transfer value exceeds the above real transfer value under the standard market price. However, the court below did not err by misapprehending the legal principles as to the transfer margin under the Income Tax Act and failing to exhaust all necessary deliberations.

C. In addition, Article 23(2)2 of the Income Tax Act provides that an amount equivalent to 10/100 of the gains from transfer shall be deducted from the gains from transfer as the special long-term holding deduction amount for long-term holding where the period from the date of acquisition of assets to the date of transfer is more than 5 to 10 years, and an amount equivalent to 30/10 of the gains from transfer where the period is more than 10 years, as the amount of special holding deduction for long-term holding, shall be deducted from the gains from transfer. The above special holding deduction for long-term holding should be naturally deducted from the gains from transfer (see Supreme Court Decision 91Nu65

In the case of this case, the defendant issued the disposition of this case by calculating the tax base without deducting only the amount of special deduction for transfer income and the amount of special deduction for transfer income in calculating the tax base of this case. However, according to the records, it is apparent that the plaintiff held the land of this case for at least five years from the date of its acquisition and transferred it to the plaintiff. Thus, the court below should have calculated a legitimate tax amount by making the special deduction for long-term holding under the above Act according to the period of possession as determined by the plaintiff'

Nevertheless, the court below erred by misapprehending the legal principles as to special long-term holding deduction and ex officio review matters of administrative litigation under the Income Tax Act, since the court below dismissed the plaintiff's claim by excluding this excessive disposition. This point is with merit.

3. Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-dong (Presiding Justice) Kim Sang-ho (Presiding Justice)