[양도소득세부과처분취소][공1994.10.15.(978),2665]
Whether Article 2 of the Addenda to the Enforcement Decree of the Income Tax Act is a special provision concerning the time of establishment of income tax liability.
The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194 of Dec. 31, 190) provides that "this Decree shall enter into force on September 1, 1990" in paragraph (1) of the Addenda, and Paragraph (2) of the Addenda provides that "this Decree shall begin to apply from the first transfer after this Decree enters into force," and the purport of Paragraph (2) of the Addenda is that "this Decree shall begin to apply from the first transfer after this Decree enters into force," and the purport of Paragraph (2) of the Addenda is to provide separate provisions from Paragraph (1) of the Addenda because capital gains differs from other general income, and therefore, Paragraph (2) of the Addenda does not provide special provisions to exclude general principles concerning the period of establishment of capital gains tax liability. Therefore, if the transfer contract enters into after September 1, 1990, the amended Enforcement Decree of the Income Tax Act shall be applied even if the transfer contract was concluded.
Paragraph (1) and (2) of the Addenda to the Enforcement Decree of the Income Tax Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)
[Judgment of the court below] Defendant 1 and 1 other
The director of the tax office
Seoul High Court Decision 93Gu19155 delivered on March 17, 1994
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
The Plaintiff’s attorney’s grounds of appeal are examined.
1. On the first and second grounds for appeal
Article 115 (1) 1 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 115 (1) 1 of May 1, 1990) provides that this Decree shall enter into force from September 1, 1990 under Paragraph (1) of the Addenda, and Paragraph (2) of the Addenda provides that "this Decree shall apply from the first transfer after this Decree enters into force." The purport of Paragraph (2) of the Addenda is to provide separate provisions from Paragraph (1) of the Addenda, since capital gains is different from other general income, and therefore, the provision of Paragraph (2) of the Addenda of the Enforcement Decree of the Income Tax Act does not provide special provisions to exclude general principles concerning the time when capital gains tax liability comes into effect. Thus, if the time when capital gains tax liability comes into effect after September 1, 1990, it shall be applied to the above amended Enforcement Decree of the Income Tax Act and it shall not be interpreted that the Enforcement Decree of the preceding amendment shall not apply (see Supreme Court Decision 90Nu2406, Oct. 16, 1990).
In the same purport, the court below's decision that the transfer date of the real estate of this case should be calculated by applying Article 115 (1) of the Enforcement Decree of the Income Tax Act, which was enforced on July 23, 191, which was the date of receipt of the registration of the real estate of this case, as well as Article 115 (1) of the revised Enforcement Decree of the Income Tax Act, is just, and there is no error of law such as misunderstanding of legal principles
2. On the third ground for appeal
According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion on the premise that macroscopic evidence that conforms to the fact that the actual transfer value of the real estate of this case is gold 54,065,00 won cannot be trusted. In light of the records and comparison, the above recognition of the court below is justified, and there is no violation of the rules of evidence such as the theory of lawsuit, and there is no reason for the argument.
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 on the bench.
Justices Chocheon-sung (Presiding Justice)