Kimyang (Attorney Hayang-chul, Counsel for the plaintiff-appellant)

head of Dongjak-gu Tax Office

Of the imposition of capital gains tax of KRW 32,441,750 for the year 198 on October 4, 1988 and the imposition of capital gains tax of KRW 23,883,240 for the said defense tax and KRW 4,76,640 for the said defense tax, the Defendant’s revocation of each excess of KRW 23,83,240 for the capital gains tax and KRW 4,76,640 for the said defense tax.

The plaintiff's remaining claims are dismissed.

All the costs of lawsuit shall be divided into seven parts, and one of them shall be borne by the plaintiff.

The imposition of capital gains tax of KRW 65,844,930 against the plaintiff on December 27, 198 and the imposition of KRW 13,168,980 against the plaintiff shall be revoked.

Since Gap evidence 1-1, 2 (Notice and Receipt) No. 1, 2-1, 3-2-1, Eul evidence No. 1, 2-2-1, 2-2-2 of Eul evidence No. 1 and Eul evidence No. 3 (Investigation Statement) without dispute over the establishment, comprehensively taking into account the whole purport of the pleading No. 3, the plaintiff and non-party No. 7-5, 251, 253-2, and 60,818-3 of Eunpyeong-gu, Seoul (after 7-5, 251, 252, 253) and transferred the land to the non-party within the statutory due date of return, the defendant shall not be deemed to have acquired the above list No. 1 through 14 of the above list of real estate transactions and the amount of real estate transactions to be transferred within the statutory due date of return No. 97, Oct. 4, 198, and the above list No. 186-2, 1987

First, the Plaintiff asserts that the above provision on the disposal of property tax based on the disposition of this case is illegal since it is merely related to the interpretation and application of the tax administration policy of subordinate administrative agencies or the laws and regulations. Thus, the disposition of this case based on the above provision is illegal as it is not binding within the administrative organization, but does not bind the people or the court. Second, each disposition of this case based on the above provision is unlawful as it is not based on the legal basis.

Therefore, with respect to the plaintiff's first argument, Article 170 (4) 2 of the former Enforcement Decree of the Income Tax Act provides that where the actual transaction price at the time of transfer or acquisition can be confirmed in a transaction designated by the Commissioner of the National Tax Service as deemed necessary for a transaction exceeding a certain size determined by the Commissioner of the National Tax Service according to the region and other real estate speculation suppression, the transfer or acquisition price shall be based on the actual transaction price, and Article 72 (3) 5 of the Regulations on the Conduct of Property Tax Investigation Affairs provides that the transfer or acquisition price shall be based on the actual transaction price, and Article 72 (8) 8 provides that when the head of a tax office recognizes it as an speculative transaction after a tax investigation related to the suppression of speculation by the Commissioner of the National Tax Service or the head of a tax office and consultation with the Fair Trade Commission

However, according to Articles 23(4) and 45(1)1 of the Income Tax Act, the calculation of capital gains tax should be based on the standard market price in cases prescribed by the Presidential Decree, and Article 170(4)2 of the former Enforcement Decree of the Income Tax Act provides that "if the actual transaction price of capital gains tax is applied pursuant to the above delegation provision, it shall be based on the actual transaction price in cases where the actual transaction price of capital gains tax is determined by the Commissioner of the National Tax Service, and it shall be determined by the Commissioner of the National Tax Service to confirm the actual transaction price at the time of transfer or acquisition in cases of transactions designated by the Commissioner of the National Tax Service as deemed necessary to restrain speculation of real estate, the transaction price of which is determined by the Commissioner of the National Tax Service, which is determined by the Commissioner of the National Tax Service, shall be determined as one of the cases where the actual transaction price of capital gains tax is determined by the Ordinance of the National Tax Service." Thus, it does not impose any restriction on the procedure or method of designation, and thus, it shall be deemed necessary for 984.

However, Article 72 (3) 8 of the above Regulation on the Investigation of Property Tax Act does not stipulate the criteria to identify whether a trader is a speculative trader, but determines the actual transaction price based on the actual transaction price by deeming the transfer or acquisition price to be based on the actual transaction price, and thus, the tax authority's arbitrary discretion is allowed to determine whether the transfer price is to be based on the standard market price. On the other hand, the provision that a taxpayer cannot at all estimate the excess tax to be imposed on himself before the disposition of transfer income tax is made, which goes against the principle of no taxation without the purpose of preventing any unlawful infringement of the people's property right by excluding arbitrary discretion of the tax authority, and giving the people's economic life to achieve legal stability and predictability (Supreme Court Decision 89Gu8149 delivered on May 8, 190). Thus, it is unlawful for the Defendant to consider the above one through the transaction falling under Article 72 (3) 5 of the above Regulation and calculate the acquisition price and the actual transaction price of the above real estate as the actual transaction price.

The plaintiff's second assertion is 10, 21-7 (1) and (2), 28-8, 1, 21-14 (3), 26 (1) 1, Article 33-2 (3) of the Enforcement Rule of the Act on the Utilization and Management of National Territory and Article 11 (1) 4 of the same Act. The land transaction report system under the Act on the Utilization and Management of National Territory is intended to adjust the contract amount and usage of the land transaction to the parties to the transaction in the area where the land is likely to personality and character of the transaction and to reduce the price of the land and to take place effectively to prevent increase in land price, etc. through 10, 10, 28-8, 2, 21-14, and 26 (1) 1, 33-2, and 11 of the Enforcement Rule of the same Act. If the contract amount reported by the parties to the transaction exceeds a certain amount, the administrative authorities may recommend the parties to report the price of the land to be reported without delay and without delay.

On the other hand, there is no dispute between the parties that there is no transfer margin if the acquisition price and transfer price of the above land are based on the standard market price with respect to the legitimate tax amount to be imposed by the Defendant on the Plaintiff as to the transfer margin of each transfer of the land in this case, and that there is no transfer margin if the acquisition price and transfer price of the above land are based on the standard market price. Therefore, if the transfer income tax and defense tax are calculated in accordance with the relevant provisions of the Income Tax Act and the Defense Tax Act after calculating the transfer margin based on the above actual transaction price after all the acquisition price and transfer price of the above land in the first through 14 are calculated based on the above actual transaction price, the transfer income tax amount of 33,403,180, 680, 630, 1988, 23,883,242, and 4,776,648, 1988, such as the entry in the attached tax calculation sheet, the amount exceeding the above tax amount shall not be revoked.

Therefore, the part of the first imposition disposition against the plaintiff exceeding KRW 23,83,242 of capital gains tax and KRW 4,776,648 of this case's defense tax is unlawful. Thus, the plaintiff's claim seeking revocation is justified, and the remaining claim is dismissed as without merit. It is so decided as per Disposition by applying Article 8(2) of the Administrative Litigation Act Article 89, Article 92 of the Civil Procedure Act to the burden of litigation costs.

Judges Suspension-type (Presiding Judge) and Kim Dong-jin