The proviso of Article 170 (1) of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 10120 of December 31, 1980) shall be null and void due to a violation of the former Income Tax Act (Act No. 3271 of December 31, 1980).

The proviso of Article 170 (1) of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 10120 of Dec. 31, 1980) shall be deemed to be the actual transaction price at the time of transfer or acquisition in case of calculating gains on transfer according to the actual transaction price pursuant to the provisions of Article 170 (4) of the same Act, if it is impossible to investigate any actual transaction price among the transfer or acquisition value, the value converted according to the method determined by the Ordinance of the Ministry of Finance and Economy, or it shall be deemed to be the actual transaction price at the time of transfer or acquisition, or it is contrary to the provisions of Articles 23 (4) and 45 (1) 1 of the former Income Tax Act (Act No. 3271 of Dec. 13,

Articles 170(1) and 170(4) of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 10120, Dec. 31, 1980); Articles 23(4) and 45(1)1 of the former Income Tax Act (Presidential Decree No. 3271, Dec. 13, 1980);

Supreme Court en banc Decision 82Nu221 delivered on November 23, 1982, 84Nu33 delivered on April 24, 1984 (Dong)

Plaintiff

The Head of Seoul Young Military Tax Office

Seoul High Court Decision 83Gu137 delivered on September 7, 1983

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

We examine the grounds of appeal.

1. In determining capital gains on transfer provided for in Article 170 (1) of the Enforcement Decree of the Income Tax Act (the Presidential Decree No. 10120, Dec. 31, 1980) shall be determined based on the actual transaction price, if either of the transfer values or acquisition values is determined based on the actual transaction price, the other shall be determined based on the actual transaction price, and if either of them is determined based on the standard market price, the other shall also be determined based on the standard market price: Provided, That where calculating capital gains based on the actual transaction price pursuant to the provisions of paragraph (4), if it is impossible to investigate any actual transaction price between the transfer values or acquisition values, the amount converted by the method

Article 170 (1) (proviso) of the Enforcement Decree of the Income Tax Act provides that where the actual transaction price at the time of transfer or acquisition is confirmed in transactions with the State, local governments or other corporations, and where the actual transaction price at the time of transfer or acquisition may be confirmed in transactions designated by the Commissioner of the National Tax Service as deemed necessary to restrain real estate speculation, the actual transaction price at the time of transfer or acquisition shall be calculated based on the actual transaction price notwithstanding the provisions of paragraph (3). Article 82-2 (2) and (3) of the Enforcement Decree of the Income Tax Act (Act No. 1417, Feb. 9, 1980) of the Enforcement Decree of the Income Tax Act provides that a reliable appraisal institution shall determine by year and by region the price increase rate investigated by the appraisal institution and by region, the application of the above land price increase rate and the method of conversion shall be determined by the Commissioner of the National Tax Service. Article 170 (1) (proviso) of the Income Tax Act shall not only be contrary to the provisions of the Income Tax Act as the mother corporation, but also expanded the taxation requirement under the Income Tax Act without delegation (Article 2328.

[Reference]

According to the legal determination by the court below, among the land sites of Yeongdeungpo-gu Seoul Metropolitan Government ( Address omitted), the share equivalent to 20 square meters, its ground bricks and apap 20 square meters, and real estate acquired by the plaintiff around November 17, 1976 at 14 square meters and 20 square meters and 138 square meters in 20 square meters in 1976, and the plaintiff entered into a contract to sell at 220,000,000 won to the non-party during the period of June 26, 1981, and completed the registration of ownership transfer pursuant to the above provision of 19 December 19 of the same year. Since the actual purchaser of the above real estate is the new World department store of the non-party corporation, and the above non-party is the title trustee, the transfer price is calculated based on the actual transaction price as the transaction price of the above corporation, and the tax base amount calculated based on the above transaction price is not known, and thus, the tax base rate of this case is unlawful by calculating the tax base rate of this case under Article 170 (20-4).

Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Il-young (Presiding Justice)