In calculating gains from transfer of special taxation of corporate tax, whether the proviso of Article 170(1) of the Enforcement Decree of the Income Tax Act shall be applied mutatis mutandis (negative)

Article 59-2(3) of the Corporate Tax Act that provides for the method of calculating gains on transfer of corporate tax special surtax, and Article 124-2(6) of the Enforcement Decree of the same Act shall not apply mutatis mutandis to the interpretation and application of Article 170(4)1 and 2 of the Enforcement Decree of the Income Tax Act even if the transaction type is similar to that of Article 170(4)1 and 2 of the Enforcement Decree of the Income Tax Act.

Article 59-2(3) of the Corporate Tax Act, Article 124-2(6) of the Enforcement Decree of the Corporate Tax Act, Article 170(1) of the Income Tax Act

Supreme Court Decision 88Nu1073 Decided May 24, 198

Attorney Lee Chang-hoon et al., Counsel for a school foundation

The director of the North Incheon National Tax Office

Seoul High Court Decision 87Gu1484 delivered on April 14, 1988

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below confirmed that a school juristic person established under the Private School Act, which is a basic property for the plaintiff's possession, transferred the land at the time of transfer from January 24, 1983 to September 10, 1984, and that at the time of transfer of the above land, the actual transaction price at the time of acquisition of the above land was not confirmed. The defendant confirmed that the transfer price is based on the actual transaction price and the transfer price is determined based on the standard market price, and that the defendant imposed the transfer margin of corporate tax special surtax and the special surtax at the time of the sale, and the special surtax at the time of the purchase are imposed based on the standard market price. In calculating the transfer margin of the special surtax in this case, the provision of Article 170 (1) of the Enforcement Decree of the Income Tax Act shall be applied

However, in applying the interpretation and application of Article 59-2(3) of the Corporate Tax Act and Article 124-2(6) of the Enforcement Decree of the same Act, which provides for the method of calculating gains on transfer of corporate tax special surtax, even though the transaction type is similar to those under Articles 170(4)1 and 170(4)2 of the Enforcement Decree of the Income Tax Act, it is a view that the proviso of Article 170(1) of the Enforcement Decree of the same Act shall not be applied mutatis mutandis

Supreme Court Decision 88Nu1073 Decided May 24, 1988

In the calculation of transfer margin of the corporate tax special surtax of this case, the decision of the court below on the ground that the proviso of Article 170 (1) of the Enforcement Decree of the Income Tax Act shall apply mutatis mutandis to the calculation of transfer margin of the corporate tax special surtax of this case is erroneous in the misapprehension of legal principles

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)