[양도소득세등부과처분취소][공1990.12.1.(885),2313]
In the application of Article 72 (3) 5 of the Regulations on the Management of Property Tax Investigation (Regulation No. 980 of the National Tax Service Directive), when a real estate is transferred within one year after its acquisition, a trial and determination on whether the purpose of speculation exists (negative)
In applying Article 72 (3) 5 of the National Tax Service Directive No. 980, which stipulates that "when real estate is acquired and transferred within one year from the acquisition of the real estate" as one of the transactions designated by the Commissioner of the National Tax Service to restrain speculative transactions, the transfer value and acquisition value may be calculated as the actual transaction value when the real estate is acquired and transferred within one year from the date of acquisition.
Articles 23(4) and 45(1)1 of the Income Tax Act; Article 170(4)2 of the former Enforcement Decree of the Income Tax Act; Article 72(3)5 of the Regulations on the Management of Property Tax Investigation
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)
Kim Jong-soo
Head of Mapo Tax Office
Seoul High Court Decision 89Gu1133 delivered on April 25, 1990
The appeal is dismissed.
The costs of appeal shall be borne by the plaintiff.
1. We examine the first ground for appeal.
According to Articles 23(4) and 45(1)1 of the Income Tax Act, the acquisition value and transfer value, which form the basis for calculating gains on the transfer of assets of capital gains tax, shall be based on the standard market price in principle, but in exceptional cases prescribed by the Presidential Decree, it shall be based on the actual transaction price. According to Article 170(4)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989; hereinafter the same shall apply), one of the cases where the actual transaction price is applicable, is "a case where it is possible to confirm the actual transaction price at the time of transfer or acquisition in a transaction designated by the Commissioner of the National Tax Service as deemed necessary to restrain speculative investment in a certain size or other real estate determined by the Commissioner of the National Tax Service according to the region," which is one of the cases where the actual transaction price can be applied, and Article 72(3)5 of the former Enforcement Decree of the Income Tax Act provides that "when the real estate is acquired within 111 year and transferred within 30 years, it shall be interpreted immediately.
The judgment of the court below to the same purport is not justified, and there is no reason to criticize the judgment of the court.
2. We examine the second ground for appeal.
In light of the records, the court below's decision is justified in finding that the actual transaction price of the real estate in this case transferred by the plaintiff based on the evidences of this case is the amount as indicated in its holding, and rejected the evidence consistent with the facts that necessary expenses, such as the introduction cost of the plaintiff's principal, etc., exist, and it is not recognized that there was a violation of the rules of evidence
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 Lee Chang-chul (Presiding Justice)