Whether the taxation on the transfer margin under the standard market price is legitimate

Considering that there is an opportunity to report the actual transaction value at the time of the preliminary or final return, in cases where the disadvantages in the calculation of the transfer margin based on the standard market price are expected, the taxation of the transfer margin based on the standard

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

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

1. Details of the instant disposition

아래와 같은 사실은 당사자 사이에 다툼이 없거나 갑 제1 내지 4호증, 을 제1, 2호증의 각 기재와 증인 박ㅇㅇ, 최ㅇㅇ의 각 증언에 변론의 전취지를 모아보면 이를 인정할 수 있다.

원고는 1990.9.14. 서울 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 ㅇㅇ아파트 ㅇㅇ동 ㅇㅇ호(이하 본건 아파트라 한다)를 소외 박ㅇㅇ로부터 매매대금 167,000,000원에 취득하였다가, 1992.8.5. 소외 최ㅇㅇ에게 매매대금 136,000,000원에 양도하였으나, 이에 대해 소득세법(1994.12.22. 법률 제4803호로 개정되기 전의 것, 이하 개정 전 법이라 한다) 제95조 내지 제100조에 따른 양도차익 예정신고나 과세표준 확정신고는 하지 않았다.

In imposing transfer income tax on the plaintiff according to the standard market price on August 16, 1993, the defendant calculated the standard market price at the time of transfer at the time of transfer pursuant to Article 56-5 (2) 1 of the Enforcement Rule before the amendment (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995; hereinafter the Enforcement Rule before the amendment), and accordingly imposed transfer income tax of KRW 29,753,740 including additional tax.

2. The parties' assertion

A. The defendant's assertion

In principle, capital gains tax shall be calculated on the basis of the standard market price: Provided, That the capital gains tax may be calculated on the basis of the actual transaction price only if it is possible to verify the actual transaction price based on the documentary evidence submitted at the time of reporting pursuant to Articles 95 through 100 of the former Enforcement Decree of the Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994; hereinafter the same shall apply) prior to the amendment pursuant to Article 170(4)3 of the former Enforcement Decree of the Act prior to the amendment (amended by Presidential Decree No. 14467 of Dec. 31, 1994). If the notice at the time of transfer as at the

B. The plaintiff's assertion

Although the Plaintiff acquired and transferred the apartment of this case as above, the Plaintiff did not report the transfer income tax base because it did not fall under the transfer marginal profit by transferring the loss at the time of transfer. As above, the imposition of transfer income tax is unlawful in light of the substance over form principle.

In addition, the defendant can at any time identify the actual transaction price and impose the transfer income tax, and the taxpayer is bound to claim the actual transaction price only by the documentary evidence submitted within the report deadline pursuant to the above Enforcement Decree. The above Enforcement Decree is an enforcement decree that is invalid in violation of the Constitution.

In addition, since the market price of the apartment was continuously lowered after the plaintiff's acquisition, the Commissioner of the National Tax Service has to regularly investigate the market price and re-announce the adjusted standard market price, but the defendant did not make a public announcement thereof even at the time of transfer by the plaintiff, and thus, the defendant calculated the standard market price at the time of transfer in accordance with the above Enforcement Rule, which is higher than the standard market price at the time of acquisition. In this case, the calculation of the increased standard market price according to the above Enforcement Rule is against

3. Whether the disposition is lawful;

A. Relevant statutes and applicable statutes applied by the defendant

(1) Relevant statutes applied by the Defendant

Articles 23 (4) 1 and 45 (1) 1, etc. of the former Act provide that capital gains shall be calculated on the basis of the standard market price in cases where transfer margin as provided in Article 95 or a final return of tax base as provided in Article 100 is not filed. Article 60 provides that the determination of the standard market price as provided in Articles 23 (4) and 45 (1) 1 of the Enforcement Decree before the amendment is made under the conditions as prescribed by the Presidential Decree. Article 115 (2) of the former Enforcement Decree of the Act provides that in cases of an apartment house, etc. located in an area designated by the Commissioner of the National Tax Service as a multi-unit house with a separate ownership of a building, the value of the land and the building shall be the standard market price of the apartment house, etc., if the standard market price at the time of transfer under paragraph (2) is identical with that at the time of transfer ＋ the value of the standard market price at the time of transfer 】 the standard market price at the time of transfer 】

(2) The decision of the Constitutional Court

However, in the case of consolidation with 91HunBa1, 2, 3, 4, etc. on November 30, 1995, the Constitutional Court held that Article 60 of the Act prior to the amendment on the standard market price is unconstitutional against the purport of the Constitution that provides for the limitation of the no taxation without law and delegated legislation. However, even if it continues to be applied for a limited period of time, it is not thought that it would cause serious harm to the concrete validity and thus be extremely contrary to the constitutional ideology, such as justice and equity, but it has already been amended and implemented since the amendment of the Act consistent with the Constitution on December 22, 1994 has already been implemented and its unconstitutional provision is constitutional. Thus, in the case of this case, it has been decided that the Act should be applied to all of the cases where the imposition of capital gains tax has not been finalized and all of the imposition of capital gains tax by applying Article 60 of the Act prior to the amendment without the simple constitutional decision.

(3) Applicable statutes

Article 99(1) of the Income Tax Act (amended by Act No. 4803, Dec. 22, 1994) provides that the transfer value and the standard market price for the assessment of the acquisition value shall be the following. Under subparagraph 1(c), for apartment houses or buildings for special purposes which are located within the buildings prescribed by the Presidential Decree, the value assessed by the method prescribed by the Presidential Decree shall be prescribed by the Enforcement Decree. Article 164(4) of the Enforcement Rule of the Income Tax Act (amended by Presidential Decree No. 1467, Dec. 31, 1994; hereinafter the same shall apply) provides that the value of the buildings at the time of transfer shall be determined by the Ordinance of the Prime Minister separately from the standard market price at the time of transfer under Article 99(1)1(c) of the Act:

B. Determination

(1) Whether the amendment affects the disposition of this case

In calculating the transfer income tax of this case, the provisions of the standard market price are identical to those of the Act prior to the amendment or the Act after the amendment, so the same amount of transfer income tax can be calculated even after the amendment. Thus, the disposition of this case should not be revoked on the ground that the Act should be applied after the amendment, except that the Act comprehensively delegated the contents of the standard market price to the Enforcement Decree prior to the amendment, as the purport of the Constitutional Court’s decision, is the same as those of the Act prior to the amendment or after the amendment.

(2) Whether Article 170(4)3 of the Enforcement Decree before the amendment violates the Constitution

The provisions of Articles 23(4) and 45(1)1 of the former Act, and Article 170(4)3 of the former Enforcement Decree of the former Enforcement Decree of the same Act, in cases where assets are transferred, shall be converted from the existing actual transaction value principle in calculating transfer margin. Thus, in cases where assets are transferred and evidential documents confirming the actual transaction value under Article 170(4)3 of the former Enforcement Decree of the same Act are not submitted within the time limit, the transfer margin shall be calculated based on the standard market price even if the actual transaction value is confirmed, and it shall not be based on the actual transaction value (see Supreme Court Decision 95Nu580, Jun. 13, 1995). Thus, the provisions of the above Enforcement Decree, like the Plaintiff’s assertion, cannot be said to be a provision that invalidates

(3) Whether Article 80(1)1 of the Enforcement Rule enacted can be applied even when price decline.

As long as the standard market price is converted to the above principle, capital gains tax shall be calculated based on the standard market price, and if the standard market price has not been publicly announced at the time of transfer, it is also allowed to calculate the standard market price at the time of transfer pursuant to Article 80 (1) 1 of the Enforcement Rule

The issue is whether the above Enforcement Rule can be applied even when the actual price is continuously decline as the plaintiff's assertion, but real estate can also be a real estate when there is real estate in the same designated area as the price varies depending on its characteristics. Since the market price is changing from time to time according to various pricing factors in the transaction market, it is not easy to estimate the standard market price that can accurately reflect it every time, and if the disadvantage is anticipated, it may be avoided by making a preliminary return on transfer margin or a final return on tax base, it cannot be said that the calculation of the standard market price at the time of transfer pursuant to Article 80 (1) 1 of the Enforcement Rule of the enacted is contrary to the principle of substantial taxation.

3. Conclusion

Therefore, it is reasonable that the defendant calculated and imposed capital gains tax pursuant to the above provisions of the Income Tax Act. Thus, the plaintiff's claim seeking the cancellation of the disposition of this case is dismissed as it is without merit. It is so decided as per Disposition