[양도소득세부과처분취소][공2002.6.1.(155),1148]
[1] Legislative intent of Article 98 of the Income Tax Act and Article 162 (1) of the former Enforcement Decree of the Income Tax Act
[2] In the case of transfer of ownership under the provisions of law, whether the transfer and acquisition time of assets should be determined in accordance with Article 98 of the Income Tax Act and Article 162 (1) of the former Enforcement Decree of the Income Tax Act (affirmative), and whether such interpretation is contrary to the principle of no taxation without law and the limit of
[1] Article 98 of the Income Tax Act provides that "the time of acquisition and time of transfer of assets shall be determined by the Presidential Decree in calculating gains from the transfer of assets", and Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 15969 of Dec. 31, 1998) provides that "the time of acquisition and time of transfer under Article 98 of the Act shall be the date of liquidation of the price of assets except for the following cases", and it does not include the time of liquidation of the price of assets in each subparagraph separately. Each of the above provisions provides that "The time of acquisition and time of transfer of assets, which are various standards within the system of the income tax law, shall be determined by the Presidential Decree in order to uniformly grasp the time of acquisition and time of transfer of assets in order to interpret and apply the related provisions without contradiction."
[2] In light of the legislative intent of Article 98 of the Income Tax Act and Article 162(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 15969, Dec. 31, 1998), even if there is a transfer of ownership under the provisions of the Act, the transfer and acquisition time of assets should be determined as well as the transfer of ownership by a juristic act under the provisions of the above Article. Such interpretation does not violate the principle of no taxation without law and the limit of delegation legislation under
[1] Article 98 of the Income Tax Act, Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 15969 of December 31, 1998) / [2] Article 98 of the Income Tax Act, Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 15969 of December 31, 1998), Articles 59 and 75 of the Constitution
[1] Supreme Court Decision 99Du165 delivered on June 22, 1999 (Gong1999Ha, 1532) / [2] Supreme Court Decision 94Nu6154 delivered on October 25, 1994 (Gong1994Ha, 3148) Supreme Court Decision 97Nu13856 delivered on April 14, 1998 (Gong198Sang, 1393)
Plaintiff (Attorney Lee Jin-jin, Counsel for plaintiff-appellant)
The Head of Namyang District Tax Office (Law Firm Gwangju, Attorney Kim Tae-ho, Counsel for the plaintiff-appellant)
Seoul High Court Decision 99Nu16766 delivered on July 6, 2000
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
Article 98 of the Income Tax Act (hereinafter referred to as the "Act") provides that "the time of acquisition and time of transfer of assets shall be determined by Presidential Decree in calculating the gains on transfer of assets", and Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 15969, Dec. 31, 1998; hereinafter referred to as the "Enforcement Decree") provides that "the time of acquisition and time of transfer under Article 98 of the Act shall be the date of liquidation of the price of assets except for the following cases." This separate provision provides that "the time of acquisition and time of transfer of assets under Article 98 of the Act shall be the date of liquidation of the price of the assets concerned except for the following cases." The above provision separate provision provides that the time of acquisition and time of transfer of assets, which are various standards within the system of income tax law, shall be uniformly grasp and to interpret and apply the relevant provisions inconsistent with each other, and thus, it shall be determined as the time of transfer under the above Act (see, e.g. 4, Supreme Court Decision 96Du194, Jun. 196, 194, 198).
According to the reasoning of the judgment below, the court below recognized that the land of this case owned by the plaintiff was transferred to the housing site development project zone executed by the non-party Korea Land Corporation (hereinafter "Corporation"), and the Central Land Expropriation Commission made a ruling of expropriation on October 21, 1996 on November 30 of the same year, but the plaintiff refused to receive compensation as prescribed by the above ruling, and the Corporation deposited it on November 29 of the same year, and the Corporation deposited the land of this case on January 7, 1997, and the ownership transfer registration for the land of this case was made on November 30, 196, and upon the plaintiff's objection, made an additional payment for compensation increased on April 18, 199, and the Corporation made an additional payment for compensation increased on June 21 of the same year pursuant to Article 17 of the Enforcement Decree of the Income Tax Act, which is the date of expropriation under Article 98 (1) 1 of the Act.
In light of the records and the above legal principles, the above recognition and determination by the court below is just, and there is no error of law such as misunderstanding of legal principles as to the transfer time of assets or omission of judgment as alleged in the grounds of appeal
In addition, in light of the legislative intent of Article 98 of the Act and Article 162 (1) 2 of the Enforcement Decree, the argument that the above Supreme Court precedents should be modified cannot be accepted, since the interpretation of the above legal principle is not contrary to the principle of no taxation without law and the limit of delegated legislation under the Constitution.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Son Ji-yol (Presiding Justice)