[2] Whether Article 56-5 (2) 1 of the former Enforcement Rule of the Income Tax Act concerning the assessment of standard market price at the time of real estate transactions within the same period of standard market price adjustment is unconstitutional and invalid (negative)

[3] Whether the amount of transfer income tax based on the standard market price may exceed the actual gains from transfer (negative)

[2] Article 56-5 (2) 1 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995) provides that the transfer income tax shall be deemed to have been granted to real estate transactions within the same standard market price adjustment period, and its purpose is to regulate the speculative act of real estate transfer by imposing transfer income tax, and the taxpayer separately prepares a way for a taxpayer to pay tax based on the actual transaction price. Thus, even in exceptional cases in light of the substance over form principle under the Framework Act on National Taxes or the general system under the Income Tax Act, such circumstance alone cannot be said to be contrary to the principle of property right and the principle of tax equality under the tax law, or contrary to the substance over form principle, etc.

[3] In the case of calculating transfer margin based on the standard market price, the tax amount calculated by the standard market price under the principle of substantial no taxation without law or prohibition of excessive taxation under the Constitution shall not exceed the scope of transfer margin based on the actual transaction price.

1. According to the reasoning of the judgment below and the records, the court below determined that the plaintiff acquired the building and site ownership of the apartment building of this case from the non-party 1's order on April 5, 1991 to the non-party 1's non-party 1's transfer on September 29, 192, but did not make a final return on the transfer profit under Article 95 of the former Income Tax Act (amended by Act No. 4520 of December 8, 1992; hereinafter the same shall apply) or the final return on the transfer profit under Article 100 of the same Act, and that the standard market price at the time of the above acquisition and transfer of the apartment of this case is 140,000,000 won (amended by Presidential Decree No. 1900, Sep. 1, 1990) and did not make a tax return on the transfer profit of this case to the non-party 20,000 won for the reason that it did not constitute the above provisional return on the transfer profit of this case 300.

2. The Constitutional Court rendered a ruling of inconsistency with the Constitution as to Article 60 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same shall apply) applied by the defendant at the time of the disposition of inconsistency with the Constitution on November 30, 1995 when the decision of inconsistency with the Constitution was rendered on the basis of the standard market price. The Constitutional Court made a ruling of inconsistency with the Constitution as to the above Article 60 of the former Income Tax Act where a decision of inconsistency with the Constitution is made on the ground that a decision of inconsistency with the Constitution is made on the ground that the decision of inconsistency with the Constitution becomes null and void because the decision of inconsistency with the law becomes null and void, national finance due to the reduction of tax revenues, problems with the national finance due to the reduction of tax revenues, violation of the equity with taxpayers, etc., so it is clear that the previous law should be applied before the enforcement date of the amended Act and the previous tax imposition should be maintained and applied even before the enforcement date of the tax.

Therefore, it is reasonable to understand that the ruling of inconsistency with the Constitution of this case is to allow the provisional application of Article 60 of the former Income Tax Act as it is until the amended Act is enforced, and it cannot be deemed unlawful on the ground that the capital gains tax was calculated by applying Article 60 of the former Income Tax Act at the time of the disposition of this case, and there is no reason to discuss the purport of objection.

3. Article 60 and Article 23(2)2 of the former Income Tax Act, Article 115(2) and (3) of the Enforcement Decree of the same Act, and Article 56-5(2)1 of the Enforcement Rule of the same Act, deeming that any real estate transaction within the same standard market price adjustment period has capital gains tax, and thus, intends to regulate speculative acts in the light of real estate by imposing capital gains tax, and the taxpayer has a separate way to pay tax based on the actual transaction price. Thus, even if exceptional cases exist in light of the substance over form principle under the Framework Act on National Taxes or the general system under the Income Tax Act, such circumstance alone does not merely go against the principle of property rights and the principle of tax equality under the Constitution, or goes against the substance over form principle under the tax law, etc.

4. However, in calculating transfer margin based on the standard market price, it is a new opinion of party members that the tax amount calculated based on the standard market price cannot exceed the scope of transfer margin based on the actual transaction price under the principle of no taxation without law or prohibition against excessive taxation under the Constitution (see, e.g., Supreme Court Decisions 96Nu402, Dec. 10, 1996; 96Nu860, Feb. 11, 1997; 95Nu1731, Feb. 14, 1997; 95Nu17731, Feb. 14, 1997). Thus, the court below rejected the plaintiff's assertion on the ground that the court below erred by misapprehending the legal principles on the taxation of the standard market price.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)