[방위세부과처분취소][공1993.5.15.(944),1314]
A. The method of calculating gains on transfer where it is deemed that there is no speculation even if it falls under Article 170(4)2(c) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194 of Dec. 31, 190) (=the standard market price)
B. Whether the taxation disposition can be contested on the ground of the mistake in setting or modifying the grade without going through the procedures for objection against the determination or revision of the land grade (negative)
A. According to Article 170(4)2(c) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194, Dec. 31, 190), where real estate is transferred within one year after it is acquired, the transfer margin may be calculated based on the actual transaction price; Provided, That where it is deemed that there is no speculation in light of the circumstances of acquisition, transfer, utilization status, etc. of real estate, it may be excluded from the application of the actual transaction price. However, if it falls under the category of speculative transactions listed in the above provision, it shall be presumed that the transaction falls under the category of such speculative transactions. However, if it is deemed that such transaction has no speculation as a normal economic act extremely high, considering such specific circumstances as the acquisition circumstance, utilization condition, sale circumstance, holding period, etc. in the pertinent real estate transaction, it shall be excluded from the actual transaction price pursuant to the proviso of the above Article and the principle
B. Even if an administrative agency imposes excessive taxation by unfairly setting or modifying the land grade, Article 44 or 46 of the Enforcement Rule of the Local Tax Act provides for the procedures such as filing a request for examination and filing an application for the determination or modification of the land grade. Therefore, if an objection is raised to the determination or modification of a grade, the administrative agency may not immediately dispute the disposition of imposition on the ground that the determination or modification of the grade was erroneous.
A. Articles 23 and 45(1) of the Income Tax Act; Article 170(4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194, Dec. 31, 1990); Article 80-2 of the Enforcement Decree of the Local Tax Act; Articles 44 through 46 of the Enforcement Rule of the same Act
A. Supreme Court Decision 92Nu619 delivered on July 14, 1992 (Gong1992, 2449) 92Nu11282 delivered on March 9, 1993 (Gong1993, 1180). Supreme Court Decision 89Nu114 delivered on September 12, 1989 (Gong1989, 1504) 90Nu5092 delivered on January 15, 1991 (Gong191, 778) 90Nu8343 delivered on April 9, 191 (Gong191, 1394)
[Judgment of the court below]
Head of Maritime Affairs Office
Busan High Court Decision 91Gu2083 delivered on April 15, 1992
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
With respect to No. 1:
According to Article 170 (4) 2 (c) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989), where real estate is transferred within one year after it is acquired, it shall be calculated based on the actual transaction price, and where it is deemed that there is no speculative speculation in light of the details of the acquisition, transfer, utilization of the real estate, etc., it may be excluded from the application of the actual transaction price after consultation under paragraph (9). This is reasonable in light of the specific circumstances such as the acquisition circumstances, utilization conditions, sale circumstances, holding period, etc. in the real estate transaction, where it is deemed that there is no speculative speculation as a normal economic act extremely high, it shall be presumed that the transaction concerned should be excluded from the actual transaction price and the standard market price should be calculated based on the standard market price (see Supreme Court Decision 92Nu619, Jul. 14, 192). 192.
According to the reasoning of the judgment below, the court below confirmed the facts in its reasoning based on the evidence, and held that the transfer of the land in this case by the plaintiff within one year after the acquisition of the real estate in this regard constitutes an speculative transaction type under Article 170 (4) 2 of the Enforcement Decree of the above Act, and it does not constitute a case where the transfer of the land in this case is to be excluded from the application of the actual transaction price on the ground that the act of transfer of the land in this case is not clearly speculative in light of the following: (a) the circumstances leading up to the transfer of the land in this case by the acquisition of the land in this case and consultation and sale; (b) its price; (c) the relationship between the plaintiff and the seller of the land in this case and the settlement form of acquisition price; (d) the period up to the acquisition and the time period up to the sale of the land in this case; and (e)
With respect to the second ground:
Even if an administrative agency imposes an excessive amount of defense tax by unfairly setting or modifying the land grade, the procedure for requesting an examination, setting or revising the land grade, etc. under Articles 44 through 46 of the Enforcement Rule of the Local Tax Act is stipulated. Thus, if an objection is raised in setting or revising the grade, it shall be relieved pursuant to the above provisions, and it shall not immediately contest the disposition of defense tax on the ground that the grade was erroneously set or revised (see, e.g., Supreme Court Decision 85Nu806, Dec. 24, 1985; Supreme Court Decision 87Nu896, Nov. 8, 198; Supreme Court Decision 89Nu14, Sept. 12, 198; Supreme Court Decision 90Nu8343, Apr. 9, 191); therefore, the judgment below is just and there is no error in the misapprehension of legal principles as otherwise alleged.
Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-sung (Presiding Justice)