Whether the provision of Article 170 (4) 2 (e) of the Enforcement Decree of the Income Tax Act (amended on August 1, 1989), which was amended on August 1, 1989, applies even in cases where the acquisition price of land located within a reported district under the Act on the Utilization and Management of the National Territory has been reported

Even if a report on the transaction contract under the Act on the Utilization and Management of the National Territory was made at a price lower than the actual transaction price at the time of the acquisition of land, the transfer income tax for the transfer of land is less or less than the actual transaction price, and for this reason, it cannot be said that the speculation takes place. The provisions of Article 170 (4) 2 (e) of the Enforcement Decree of the Income Tax Act, which was amended on August 1, 1989, shall not be interpreted as the purpose of imposing transfer income tax based on the actual transaction price by deeming the acquisition price of land in the reported area under the Act on the Utilization and Management of the National Territory as an speculative transaction before the amendment as the actual transaction

Article 170(4)2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 1, 1989); Article 21-7(1) of the Act on the Utilization and Management of the National Territory

Plaintiff 1, et al., Counsel for the plaintiff 1 and five others, Counsel for the defendant-appellant-appellee)

Daejeon Head of the tax office

Seoul High Court Decision 90Gu15749 delivered on April 25, 1991

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

[Reasoning] The ground of appeal is examined.

1. 원심판결이유에 의하면 원심은 원고들의 피상속인인 망 소외 1이 국토이용관리법 소정의 토지등의 거래계약신고 구역에 속하는 이 사건 토지들을 1987. 9. 23. 부터 1988. 9. 15.까지 사이에 취득하여 1989. 9. 28. 양도하였는데, 이 사건 토지들을 매수할 때에 거래계약 신고를 함에 있어 계약 예정금액을 실지거래가액보다 낮은 금액으로 신고하여 위 국토이용관리법규정에 위반하였다고 인정하고, 이는 소득세법시행령(1989. 8. 1. 대통령령제12767호로 개정된 것, 이하 같다) 제170조 제4항 제2호(마)목 소정의 ＂관계법령에 위반한 경우”에 해당한다는 이유로 그 양도차익을 실지거래가액에 의하여 산정하여야 한다고 판단하였다.

2. However, even if the above deceased reported the contract amount under the Act on the Utilization and Management of the National Territory at a price lower than the actual transaction price in the acquisition of the land in this case, it cannot be said that the transfer income tax arising from the transfer of the land in this case is less or less than the actual transaction price, and thus, it cannot be said that the above provision of the Enforcement Decree of the Income Tax Act provides for the purpose of imposing the transfer income tax on the land in the reported area under the Act on the Utilization and Management of the National Territory prior to the amendment of the Enforcement Decree.

3. Thus, the judgment of the court below shall be deemed to be erroneous in interpreting Article 170 (4) 2 (e) of the Enforcement Decree of the Income Tax Act, and it is justified within the scope of this issue.

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 Lee Jae-chul (Presiding Justice)