Whether this violates the principle of no taxation without law

The assessment based on the standard market price at the time of acquisition and transfer under the Income Tax Act before December 22, 1994 cannot be deemed as a violation of the principle of no taxation without the law.

The contents of the decision shall be the same as attached.

Busan District Court Decision 98Gu4573 delivered on April 7, 1999

1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.

1. Details of taxation; and

The following facts may be acknowledged in the absence of dispute between the parties, or in full view of the whole purport of the pleadings, with Gap evidence Nos. 1, 2, 1-1, 2, 3, 2-1, and 2-2.

A. On March 20, 1984, the Plaintiff purchased 15 square meters and 202.6 square meters of the same Dong-dong 16, and on March 28, 1984 of the same year, the Plaintiff newly constructed a building volume of 97.91 square meters on each of the above land on May 20, 198, and acquired each of the above land (hereinafter the above real estate and buildings) and transferred the instant real estate to the Non-Party Gangnam-dong on February 18, 195.

B. The defendant did not make a preliminary return or final return of transfer income tax base even after the plaintiff transferred the real estate of this case, applying the main text of Article 23(4)1 and the main text of Article 45(1)1(a) of the Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same shall apply) to the standard market price at the time of acquisition and transfer at the time of transfer, but the officially assessed individual land price at the time of the plaintiff's acquisition of the real estate of this case has not been publicly notified. As such, the defendant transferred the real estate of this case to the plaintiff under Article 9 of the Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same shall apply) and Article 99 of the Enforcement Decree of the Income Tax Act, the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1467, Dec. 31, 1994; 194).

2. Whether the instant taxation disposition is legitimate

A. The parties' assertion

The Defendant asserts that the instant taxation disposition is lawful as it is in accordance with the above disposition grounds and related Acts and subordinate statutes. Accordingly, the Plaintiff’s supplementary provision of Article 3 of the Enforcement Decree of the Income Tax Act, which applies to the calculation of the standard market price at the time of its acquisition, was invalidated by the Constitutional Court’s ruling of inconsistency with the Constitution as to Article 60 of the Income Tax Act before the amendment, which is the ground for delegation. Even if the supplementary provision of this case is based on Article 9(3) of the Income Tax Act, the above Article 99(3) of the Income Tax Act merely provides for matters necessary for the standard market price under each subparagraph of Article 9(1) of the Income Tax Act, and delegates it to subordinate Acts and subordinate statutes without setting a specific scope as to the calculation of the standard market price at the time of its acquisition. Thus, the above supplementary provision also becomes null and void because it does not have any ground for delegation, and thus, the individual land price was publicly announced on August 30, 199.

B. Relevant statutes

(1) Articles 23(4)1 and 45(1)1(a) of the Income Tax Act and Article 170(4) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) provide that where the transferor of land or building fails to make a preliminary return on the gains from the transfer of assets or a final return on the tax base of capital gains, the transfer value shall be based on the standard market price at the time of transfer, and the acquisition value shall be based on the standard market price at the time of acquisition.

(2) Article 99 (1) of the amended Income Tax Act provides that the standard market price of land under the provisions of Articles 96, 97 (1) 1 and 100 shall be as follows. Of the assets under subparagraphs 1 through 94 subparagraph 1, the land price shall be the publicly assessed individual land price, and the land price without the publicly assessed individual land price shall be the amount appraised by the method as determined by the Presidential Decree in consideration of the publicly assessed individual land price of neighboring similar land, and in the areas as determined by the Presidential Decree where the land price sharply increases, the price assessed by the rate method as determined by the Presidential Decree shall be the value calculated by the estimation method as determined by the Presidential Decree except for the cases as provided in item (c), the building shall be jointly owned with the land attached to the building, and the provisions of Article 9 (1) 1 to 9 (a) shall be enforced for the first time with respect to the house or building located within the areas as determined by the Presidential Decree, and those of Article 94 (1) 1 to 9 (3) shall be determined by the newly assessed individual land price as determined by the Presidential Decree.

(3) Meanwhile, Article 115(1) of the Enforcement Decree of the Income Tax Act provides that the determination of the standard market price under the provisions of Article 60(1) of the Act prior to the amendment shall be based on the officially assessed individual land price except as provided in item (b) above; the land without the publicly assessed individual land price shall be based on the method determined by the Ordinance of the Ministry of Finance and Economy in consideration of the officially assessed individual land price of neighboring similar land; and the area designated by the Commissioner of the National Tax Service shall be based on the rate calculated by the rate as provided in Article 80(a) of the Enforcement Decree of the Local Tax Act, except as provided in item (b) above; the provisions of Article 115(1) of the Addenda of the Enforcement Decree of the Income Tax Act concerning apartment houses and buildings for special purpose in the area designated by the Commissioner of the National Tax Service shall be based on the first evaluation and notification by the Commissioner of the National Tax Service in consideration of the kind, size, and transaction situation of the transferred land at the time of acquisition; the provisions of Article 19(3) of the Addenda shall be applied from 19(6).

C. Determination

(1) The Constitutional Court rendered a decision of inconsistency with the Constitution as to Article 60 of the Income Tax Act prior to the amendment in cases of consolidation cases, including 95HunBa1 on November 30, 1995. The Constitutional Court made a decision of inconsistency with the Constitution as to Article 60 of the Income Tax Act prior to the amendment, which is a decision of inconsistency with the Constitution as to the effect of a decision of inconsistency with the Constitution as to Article 60 of the Income Tax Act prior to the amendment, where the decision of inconsistency with the Constitution becomes null and void because the decision of inconsistency with the Constitution becomes null and void as a result of its extensive effect on the case in question, etc.

(2) However, pursuant to Articles 1 and 3 of the Addenda of the revised Income Tax Act and Article 164 of the Enforcement Decree of the same Act, the standard market price shall be calculated for the transfer made after the enforcement of the revised Income Tax Act and Article 164 of the Enforcement Decree of the same Act based thereon. Meanwhile, according to Article 11 of the Addenda of the Enforcement Decree of the Income Tax Act prior to the enforcement of the revised Income Tax Act, the provisions that are not contrary to the Enforcement Decree of the revised Income Tax Act in the Enforcement Decree of the Income Tax Act prior to the enforcement of the Income Tax Act shall continue to be effective for the transfer made after the enforcement of the revised Income Tax Act, and Article 3 of the Addenda of the revised Income Tax Act prior to the enforcement of the revised Income Tax Act shall not be contrary to the Enforcement Decree of the amended Income Tax Act prior to the notice of the officially assessed individual land price. Thus, even under Article 11 of the revised Income Tax Act, the standard market price at the time of acquisition of the land acquired before the publicly notified individual land price shall be calculated in the same manner as the previous Act.

(3) Article 99(3) of the Income Tax Act provides that the standard market price of each subparagraph of paragraph (1) shall be determined by the Presidential Decree, and it is delegated to subordinate laws and regulations without setting any specific scope with respect to the calculation of the standard market price at the time of its acquisition. Thus, it is alleged that Article 38 and Article 59 of the Constitution, which provides the principle of no taxation without law without law, violates Article 75 of the Constitution, which provides the principle of no taxation without law, but Article 99 of the Act provides that the standard market price shall be determined by the Presidential Decree, unlike Article 60 of the Income Tax Act, and Article 60 of the Act provides that the standard market price shall be determined by the Presidential Decree, and Article 99(3) of the Act provides that matters necessary for the standard market price of each subparagraph of paragraph (1) shall be delegated to the Presidential Decree. Thus, the plaintiff's assertion cannot be deemed to violate Article 75 of the Constitution, which provides the principle of no taxation without law without law.

3. Conclusion

Therefore, the plaintiff's claim seeking revocation on the premise that the taxation disposition of this case is unlawful is dismissed as it is without merit, and the costs of lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.

may 13, 1998