[양도소득세등부과처분취소][공1990.12.1.(885),2326]
Whether the amended provisions of Article 115(3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12154, May 8, 1987) apply to cases where a land transfer contract was concluded prior to the enforcement of the former Enforcement Decree of the Income Tax Act, but any balance is paid after the enforcement
Since capital gains tax are different from other general income, it is an exception to the application of Article 115 (3) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12154 of May 8, 1987), and it cannot be interpreted that the provisions of Article 115 (3) of the amended Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12154 of the Income Tax Act of the same year) are different from the general application of Article 115 (2) of the same Addenda. Thus, even if a land sales contract was concluded before the enforcement of the Enforcement Decree, if a seller receives sales balance and makes a registration of transfer of ownership in the name of buyer after the enforcement of the contract, if the seller receives the purchase balance and makes a registration of transfer of ownership after the enforcement of the contract, the time when the liability to pay capital
Article 115 (3) of the former Enforcement Decree of the Income Tax Act, Paragraph (3) of the Addenda to the former Enforcement Decree
Republic of Foreign Affairs
The Director of the Pacific District Office
Seoul High Court Decision 88Gu5572 delivered on February 7, 1990
The judgment below is reversed and the case is remanded to Seoul High Court.
We examine the grounds of appeal.
According to the reasoning of the judgment below, the court below held that the plaintiff entered into a contract of transfer to sell the land of this case to the non-party heading 106,00,000 won on November 8, 1986 and received the down payment of KRW 10,00,000 on that day, and the intermediate payment of KRW 40,000 on December 2, 1986 after receipt of each of the special provisions of Article 115 (3) of the Enforcement Decree of the Income Tax Act (amended on May 8, 1987) and confirmed the fact that the registration of ownership transfer was completed on the date of receipt of the balance, and then the revised Enforcement Decree of the Income Tax Act (amended on May 8, 1987) provides that this Decree shall enter into force from the date of its promulgation under Paragraph 1 of the Addenda, and Article 115 (3) of the Addenda shall be applied to the case where the defendant first transfers the land to the non-party heading 1,000,000 won,000 won.
However, Article 21(1)1 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12154, May 8, 1987) provides that "this Decree shall apply from the taxable period to which the enforcement date of this Decree belongs" under the title of general application. Paragraph (2) provides that "The amended provisions of Articles 94(5)1 and 115(3) shall apply from the first transfer after the enforcement date of this Decree," and Paragraph (3) provides that "The provisions of Article 21(1)1 of the Framework Act on National Taxes and Paragraph (2)2 of the amended Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12154, May 1, 1987) shall apply from the date of entry into force of the above revised Enforcement Decree No. 97 of the Income Tax Act (amended by Presidential Decree No. 1981, Mar. 19, 207)". This provision provides that "the transfer income tax obligation of this case differs from the date of entry into force.
Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the laws applicable to the taxation of this case, which affected the conclusion of the judgment.
Justices Yoon So-young (Presiding Justice)