In a case where the actual transaction price is found before the closing of argument in the revocation lawsuit at the time of the enforcement of the former Income Tax Act (amended by Act No. 3271 of Dec. 13, 1980), the method of evaluation

Even if it was impossible to know the actual transaction price at the time of taxation because a person who transferred assets fails to make a preliminary return on capital gains under Article 95 of the former Income Tax Act (amended by Act No. 3271 of Dec. 13, 1980), or a final return on capital gains under Article 100 of the same Act, even if it was impossible to know the actual transaction price at the time of the closing of argument in the lawsuit seeking cancellation of taxation, the transfer and acquisition value shall be assessed and not based on the standard

Articles 23, 45, 95, and 100 of the former Income Tax Act (amended by Act No. 3271 of Dec. 30, 1980), Article 170 (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9698 of Dec. 31, 1979)

Supreme Court Decision 83Nu146 delivered on November 8, 1983, 83Nu553 delivered on December 27, 1983, 84Nu394 delivered on October 23, 1984

Plaintiff

Head of Dong Tax Office

Seoul High Court Decision 84Gu1095 delivered on April 16, 1985

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal by the defendant litigant are examined.

According to Articles 23(4) and 45(1)1 of the Income Tax Act (amended by Act No. 3271 of Dec. 13, 1980), the transfer value and acquisition value shall be based on the actual transaction value, and if the actual transaction value is unclear, it shall be based on the standard market price at the time of transfer or acquisition of the assets. Meanwhile, pursuant to Article 170(3) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9698 of Dec. 31, 1979), if a resident who transfers assets fails to make a preliminary return of transfer margin under Article 95 of the Income Tax Act, and so it is impossible to determine the actual transaction value due to the failure of the person who transfers assets to make a preliminary return of transfer margin under Article 95 of the Income Tax Act or the final return of tax base under Article 100 of the same Act, it shall be evaluated that the actual transaction value at the time of taxation was not known until the closing of argument at the time of the lawsuit for cancellation of the taxation; see 138. 198.31.4.38.

In the above opinion of the court below, the plaintiff's acquisition value and transfer value of the site of this case are assessed based on the actual transaction price, and the calculation of transfer margin is just and there is no error of law such as the theory of lawsuit. Therefore, it is not erroneous in the judgment of the court below.

Therefore, the appeal is dismissed, and the costs of 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 Judge) No. 2 (Presiding Justice) No. 2004, Lee Jong-chul, Lee Jong-young, Lee Jong-chul, Lee Jae-young, and Lee