In calculating gains on transfer under the Act on Special Measures for the Control of Real Estate Speculation, the transfer value shall be based on the actual transfer value and the acquisition value shall be based on the current base value.

According to Article 9 of the Special Measures Act on the Control of Real Estate Speculation (Act No. 2281, Jan. 13, 1971) Article 9, the transfer value and acquisition value for calculating gains on the transfer of land are different, and the transfer value and acquisition value shall be calculated based on the actual transaction value, only in exceptional cases, as the principle is based on the current market price. Therefore, the transfer value is erroneous if the transfer value is calculated based on the current market price.

Article 9(1) of the Act on Special Measures for the Suppression of Real Estate Dumping; Article 20-2(3) of the Enforcement Decree of the Act on Special Measures for the Suppression of Real Estate Dumping

Attorney Lee Ho-ho, Counsel for plaintiff-appellant

Litigation Performers of the Han River Tax Office, et al. and two others

Seoul High Court Decision 77Gu426 delivered on June 27, 1978

The judgment below is reversed and the case is remanded to Seoul High Court.

(1) We examine the grounds of appeal as to the transfer cost of Defendant Litigation Performers’ best use.

The court below recognized that the plaintiff paid 150,000 won to the non-party 2, the introduction fee for the transfer of this case to the non-party 1, and recognized that 150,000 won was deducted in the calculation of the transfer margin. According to the non-party 2's testimony by the witness of the court below, the plaintiff received 110,000 won as the introduction fee for the transfer of 44 square meters on the land of this case and 43 square meters on the land of this case, and the plaintiff himself did not receive 57,000 won as the introduction fee for the transfer of this case's land. Thus, the court below erred in finding that the court below recognized the transfer introduction fee as 150,000 won, without any evidence.

The appeal pointing this out is with merit.

(2) The grounds of appeal by the Plaintiff’s attorney and the remaining grounds of appeal by the Defendant’s attorney are examined together.

According to Article 9 (1) of the Act on Special Measures for the Control of Real Estate Investment, which was enforced at the time of the occurrence of the cause of this taxation, land gains from the transfer shall be the amount calculated by subtracting the amount of the standard market value at the time of acquisition from the standard market value at the time of transfer, and the capital expenses, transfer expenses, interest rate of

However, under the conditions as prescribed by the Presidential Decree, if gains from the transfer of land are deemed to be significantly different from the actual gains from the transfer or if a taxpayer makes an application, the gains from the transfer shall be calculated on the basis of the actual transaction price. According to Article 20-2 (1) of the Enforcement Decree of the same Act, the actual transaction price in the proviso of Article 9 (1) of the Act refers to the price actually transacted at the time of acquisition or transfer, respectively: Provided, That if there is no actual transaction price at the time of acquisition or transfer (referring to the case of acquisition without compensation or transfer without compensation) or the actual transaction price is unclear, the actual transaction price shall be deemed to be the actual transaction price. (1) If the actual transaction price is not known under Article 20-2 (2) of the Enforcement Decree of the same Act, and if there is an actual transaction price with the State or a public organization, the transaction price shall be deemed to be the actual transaction price if a reliable real estate appraisal agency, such as the Korea Appraisal Board and a financial institution, etc., has appraised the market price similar to the land concerned.

According to the above provisions, the transfer margin on the land of this case shall be calculated on the basis of the same standard market value according to the main sentence of Article 9(1) of the Act on Special Measures for the Suppression of Real Estate Speculative Action. However, in a case where the transfer margin on the land of this case is deemed to have a substantial difference from the actual transfer margin as stipulated in the proviso of Article 20-2(3) of the Enforcement Decree of the same Act and Article 20-2(2) of the same Enforcement Decree of the same Act, the transfer margin on the land of this case shall be calculated on the basis of actual transaction value, such as the transfer margin and the acquisition value

Nevertheless, the court below determined that the transfer value of the land of this case is based on the actual transfer value, and the acquisition value of the land of this case is calculated on the basis of the current base value as of January 1, 1968. The court below's decision in this regard is erroneous in the misapprehension of the legal principles as to the Article of the law in this regard, and it is reasonable to discuss the appeal by the plaintiff's attorney pointing this out. Therefore, the court below's decision which does not require a decision as to the remaining appeal of the plaintiff's attorney pointing this out,

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Tae-hee (Presiding Justice)