Where a specific area and rate designated by the Commissioner of the National Tax Service have been transferred after determining them, but no applicable rate exists at the time of acquisition, the method of calculating capital gains.

To constitute the basis of calculation of transfer income tax pursuant to Article 115 (1) 1 (a) and (2) of the former Enforcement Decree of the Income Tax Act, the real estate concerned is located in a specific area within the area designated by the Commissioner of the National Tax Service, and there must be such a rate as determined by the Commissioner of the National Tax Service as well as the time of the transfer of the real estate, so even if the Plaintiff transfers the real estate after determining the specific area and the ratio, if there is no applicable rate at the time of the acquisition of the real estate, the acquisition value and the transfer value cannot be calculated based on the standard market price under the Local Tax Act.

Articles 60 and 23(4) of the former Income Tax Act (Act No. 3098, Dec. 5, 1978); Articles 115(1)1(a) and 115(2) of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 9229, Dec. 30, 1978)

Supreme Court Decision 82Nu276 Delivered on December 28, 1982

Plaintiff

head of Sung Dong Tax Office

Seoul High Court Decision 82Gu712 delivered on December 13, 1983

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

We examine the grounds of appeal.

If the provisions of Article 23(4), Article 45(1)1, Article 95(1), and Article 170(3) of the Enforcement Decree of the same Act for the purpose of Article 100(1) of the Income Tax Act are gathered, gains on transfer accruing from the transfer of land shall be calculated on the basis of actual acquisition value and actual transfer value in principle. In the case of failure to perform the preliminary return on transfer margin or the final return on tax base, acquisition value and transfer value shall be calculated on the basis of standard market price. Meanwhile, Article 115(1)1(a) of the Enforcement Decree of the Income Tax Act for the specific area prescribed by the Commissioner of the National Tax Service pursuant to the delegation provision of the Income Tax Act for the purpose of determining the standard market price, which is similar to the standard market price of land and building under the Local Tax Act at the time of acquisition, shall be appraised by the method of multiplying the amount calculated by the ratio determined by the Commissioner of the National Tax Service based on the actual sale price of land and building at the time of acquisition by the standard market price at the specific area.

In light of the facts duly confirmed by the court below, the plaintiff purchased and acquired 2 bbebbebs in Samsung-dong, Samsung-gu, Seoul Metropolitan Government 379-2-bbbebs and 73-bbbebs and transferred them on February 14, 1979, and the area to which the land belongs was designated by the Commissioner of the National Tax Service in 1978 as a specific area and the rate was determined by the Commissioner of the National Tax Service in 1978. Thus, even if the plaintiff transferred the land of this case to February 14, 1979 (i.e., designated as a specific area and determined the rate after the rate was determined), the acquisition and transfer value of the land of this case shall be calculated based on the standard market value under the Local Tax Act.

Therefore, in this regard, the decision of the court below that the transfer value of the land in this case was unlawful since the price calculated by multiplying the land cadastre grade as of the first half of 1979 by the ratio, and the transfer price calculated by applying the above ratio was calculated by multiplying the transfer price calculated by the land price index by the land price index, and the transfer price and the acquisition price in this case exceeded the transfer income tax calculated by calculating the standard market price under the Local Tax Act by the standard market price under the Local Tax Act is just and the decision of the court below that cancelled the above part is erroneous. contrary to the above opinion, Article 115 of the Enforcement Decree of the Income Tax Act of the Republic of Korea is a policy provision to restrain real estate speculation that undermines economic stability and growth, which is a policy provision for pre-designated a specific area and which does not set the ratio in advance.

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

Justices Lee Il-young (Presiding Justice)