[1] The purport of the Constitutional Court's decision on inconsistency with the Constitution of Article 60 of the former Income Tax Act

[2] Whether the rate determined by the Commissioner of the National Tax Service pursuant to Article 115 (2) of the former Enforcement Decree of the Income Tax Act becomes effective (negative)

[3] Whether Article 115 (1) 1 (a) of the former Enforcement Decree of the Income Tax Act is against the Constitution or law (negative)

[4] Whether Article 115 (3) of the former Enforcement Decree of the Income Tax Act and Article 56-5 (7) of the former Enforcement Rule of the Income Tax Act are contrary to the Constitution or statutes (negative)

[5] The subject matter of the taxation revocation lawsuit and the submission time and scope of the data

[1] Although Article 60 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) is unconstitutional in cases where the Constitutional Court made a decision of inconsistency with the Constitution on Nov. 30, 1995, 91Hun-Ba1, 2, 3, 4, 92Hun-Ba17, 37, 94Hun-Ba34, 44, 45, 48, 95Hun-Ba12, and 17 (Consolidation) of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994) is unconstitutional, the decision of inconsistency with the Constitution is null and void because the decision of inconsistency with the Constitution becomes null and void due to its revocation of all the disposition of capital gains tax based on the former Acts and subordinate statutes, the national finance problem due to the reduction of tax revenues, and the violation of equity with taxpayers. Accordingly, the decision of inconsistency with the above provisions of the former Income Tax Act does not have any reason to be understood.

[2] Article 115 (2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) of the same Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) provides that

[3] Article 115 (1) 1 (a) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 1294 of May 1, 1990) provides that in a specific area prescribed by the delegation of the Commissioner of the National Tax Service pursuant to Article 60 of the former Income Tax Act (amended by the Presidential Decree No. 4803 of December 22, 1994), the amount assessed by the rate method is determined as the standard market price and delegated to the Commissioner of the National Tax Service for the determination of a specific area is merely a delegation to the Commissioner of the National Tax Service of the determination of the materials for calculating the appropriate standard market price at that time according to the situation of each individual land. Since Article 115 (1) 1 (a) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12994 of May 1, 190), Article 115 (1) 1 (a) of the

[4] Article 115(3) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767 of Aug. 1, 1989) provides for general matters concerning the determination of standard market price in accordance with delegation of Article 115 of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 4803 of Dec. 22, 1994), and Article 115 of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767 of Aug. 1, 1989) provides for the method of determining standard market price of assets with no percentage rate at the time of transfer to the Commissioner of the National Tax Service. Since it is clear that Article 115(3) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767 of Aug. 1, 1989), the method of determining standard market price at the time of acquisition of assets without a percentage rate shall not be deemed as violating the principle of no taxation without law without law or its invalidity.

[5] In a lawsuit seeking revocation of a taxation disposition, the determination is based on whether the pertinent tax amount exceeds the legitimate tax amount. The parties concerned may submit arguments and materials supporting the objective tax base and tax amount until the closing of arguments in the fact-finding court. If the amount of tax assessed lawfully exceeds the legitimate tax amount, the taxation disposition is unlawful, and if the amount of tax assessed is within the scope of legitimate tax amount, the taxation disposition is legitimate.

[1] Article 60 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; see Article 99 of the current Income Tax Act) / [2] Article 60 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; see Article 99 of the current Income Tax Act); Article 115 (2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 1, 1989; see Article 99 (2) of the current Income Tax Act; Article 164 (6) of the current Enforcement Decree of the Income Tax Act / [3] Article 60 (see Article 9 of the current Income Tax Act; Article 99 of the Enforcement Decree of the Income Tax Act; Article 196 (1) 9 of the current Income Tax Act (see Article 97 (2) of the current Enforcement Decree of the Income Tax Act); Article 98 (19 (2) of the current Enforcement Decree of the Income Tax Act)

[1] Constitutional Court Decision 91Hun-Ba2, 3, 92Hun-Ba34, 45, 95, 95Hun-Ba12, 17 (Hun-Ba13, 42) decided on November 30, 1995; 96Nu7120 decided May 7, 1997; 96Nu16704 decided May 7, 1997; 96Nu1979 decided May 29, 1997; 96Nu1679 decided May 29, 197; 97Nu979 decided May 7, 1997; 96Nu16704 decided May 7, 197; 197Nu9799 decided Oct. 24, 1997; 209Nu97979 decided Oct. 97, 209

[Judgment of the court below]

Distribution of Tax Offices (Attorney Lee Young-gu, Counsel for the defendant-appellant)

Supreme Court Decision 96Nu7120 Delivered on May 7, 1997

Seoul High Court Decision 97Gu21040 delivered on October 23, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The Plaintiff’s attorney’s ground of appeal is examined.

1. On the first ground for appeal

Despite the unconstitutionality of Article 60 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same) in the case of 91HunBa1, 2, 3, 4, 92HunBa17, 37, 94HunBa17, 94HunBa34, 44, 45, 48, 95HunBa12, 17, the Constitutional Court made a decision of inconsistency with the Constitution is unconstitutional on November 30, 1995. However, the decision of inconsistency with the Constitution is a simple decision of unconstitutionality as a result of the revocation of both the disposition of capital gains tax based on the former Act and subordinate statutes, the effect of the decision of inconsistency with the above law, the national finance due to the reduction of tax revenue, and the violation of equity with taxpayers. Thus, the previous decision of unconstitutionality of Article 60 of the former Income Tax Act should be understood as the unconstitutionality of the Act.

In this purport, the judgment of the court below is just, and there is no error in violation of the Constitution as otherwise alleged in the ground of appeal. The argument is without merit.

2. On the second ground for appeal

According to the reasoning of the judgment of the court below, the court below recognized the fact that the rate applied to the above land was 1.7 when the plaintiff transferred a share of 735.4m2 to the Gangnam-gu Seoul Metropolitan Government ( Address 1 omitted) by integrating the whole purport of the pleading in the written evidence Nos. 1 and 2 of the evidence Nos. 1 and 4 of the judgment of the court below. In light of the records, the court below's fact-finding is just and it is not erroneous in finding facts without any evidence as otherwise alleged in the ground of appeal. The argument is

In addition, since the Commissioner of the National Tax Service, pursuant to Article 115(2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 1, 1989; hereinafter the same), the effect of which the ratio was determined by the Commissioner of the National Tax Service shall not arise only by publishing it in the Official Gazette (see Supreme Court Decision 93Nu2360, Sept. 14, 1993). Thus, even if the court below recognized only the fact determined by the ratio and applied the ratio without determining whether the ratio was publicly notified, it cannot be said that there were errors in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

3. On the third ground for appeal

A. Article 115 (1) 1 (a) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12994, May 1, 1990; hereinafter the same) provides that with respect to a specific area prescribed by the Commissioner of the National Tax Service by delegation under Article 60 of the former Income Tax Act, the amount assessed by the rate method is determined as the standard market price and delegated to the Commissioner of the National Tax Service with the determination of the specific area is merely delegation to the Commissioner of the National Tax Service of the determination of the data for the calculation of the appropriate standard market price at that time according to the specific situation of each individual land. Since Article 115 (1) 1 (a) of the former Enforcement Decree of the Income Tax Act provides for the method of application of the rate under Article 115 (2), it cannot be said that Article 115 (1)

In addition, Article 115(3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 1, 1989; hereinafter the same) provides for general matters concerning the determination of standard market price in accordance with delegation of Article 115(1) and (2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 1, 1989; hereinafter the same) even if the time of acquisition is delegated to the Ordinance of the Ministry of Finance and Economy, Article 115 of the former Enforcement Decree of the Income Tax Act provides for general matters concerning the determination of standard market price in accordance with delegation of Article 60 of the Income Tax Act. Article 115(1) and (3) of the former Enforcement Decree of the Income Tax Act provides that the method of determining standard market price at the time of acquisition of assets without multiple rates is clearly delegated to the Ordinance of the Ministry of Finance and Economy, which goes beyond the scope of delegation under Article 119(2).

In this regard, Article 115(3) of the former Enforcement Decree of the Income Tax Act and Article 56-5(2) of the former Enforcement Decree of the Income Tax Act (Article 57-5 is a clear clerical error in Article 56-5), and Article 56-5(3) of the former Enforcement Decree of the Income Tax Act (Article 8, 9, 9, 9, 10, 15, 11, 9 of the same Act) of the Enforcement Decree of the Income Tax Act shall be deemed valid, and it is reasonable for the court below to determine the amount converted into the acquisition value by applying the aforementioned provision, and it shall not be deemed that there are errors such as the application of statutes unconstitutional

B. Determination as to the legality of a disposition in a lawsuit seeking revocation of a tax disposition is based on whether it exceeds a legitimate tax amount. The parties concerned may submit arguments and materials supporting the objective tax base and tax amount until the closing of arguments in the fact-finding court. If the amount of tax imposed lawfully exceeds a legitimate tax amount as a result of the calculation of a legitimate tax amount, the taxation disposition is unlawful, and if the amount of tax imposed is within the scope of a legitimate tax amount, the taxation disposition is lawful (see, e.g., Supreme Court Decisions 96Nu15022, Mar. 28, 1997; 94Nu13527, Apr. 28, 1995; 92Nu4840, Jul. 24, 1992).

According to the reasoning of the judgment below, the court below dismissed the plaintiff's claim on the ground that the defendant calculated a reasonable tax amount based on the acquisition value determined by applying Article 115 (3) of the former Enforcement Decree of the Income Tax Act and Article 56-5 (7) and (5) of the former Enforcement Decree of the Income Tax Act in imposing capital gains tax on the plaintiff, and since the tax amount imposed on the plaintiff by the defendant does not exceed the legitimate scope of tax amount, the judgment of the court below is just in accordance with the above legal principles, and it is not erroneous in the misapprehension of the legal principles as otherwise alleged in the ground of appeal. All arguments

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)