(a) Requirements for applying the method of calculating gains on transfer by the ratio determined by the Commissioner of the National Tax Service;

(b) Method of calculating gains on transfer, where a disposition based on the standard market price was made because the actual transaction price is unclear, but the actual transaction price is found in the lawsuit seeking cancellation;

(a) In order to calculate the transfer margin by the multiple method pursuant to Article 115(1)1(a) and (2) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 9229, Dec. 30, 1978); not only at the time of transfer but also at the time of acquisition, the assets are located in the specific area and the multiple rate is determined thereon.

B. In imposing transfer income tax, etc., even if the tax authority imposed tax based on the standard market price because the actual transaction price is unclear, if the actual transaction price is determined in a lawsuit seeking cancellation of such tax disposition, the tax amount shall be calculated based on the actual transaction price under the principle of substantial taxation under the Framework Act on National Taxes, and whether or not such tax disposition is unlawful should be determined in lieu of

A. Article 115(1)1(a)(b) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 9229, Dec. 30, 1978); Article 23 and Article 45(1) of the Income Tax Act (amended by Act No. 3098, Dec. 5, 1978); Article 14 of the Framework Act on National Taxes

A. Supreme Court Decision 83Nu579 delivered on February 14, 1984; 83Nu613 delivered on March 13, 1984; 84Nu63 delivered on May 29, 1984; 84Nu2 delivered on September 25, 1984; 84Nu339 delivered on December 11, 1984

Plaintiff

Head of Dong Daegu Tax Office

Daegu High Court Decision 83Gu383 delivered on July 31, 1984

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Daegu High Court.

The defendant's appeal is dismissed.

The costs of appeal against the dismissal of an appeal shall be borne by the defendant.

1. We examine the grounds of appeal by the defendant litigation performer.

Article 23, Article 45 (1) and Article 60 of the Income Tax Act (amended by Act No. 3098 of Dec. 5, 1978) which was enforced at the time of the original adjudication at the time of the transfer of real estate shall be based on the actual transaction price, and if the actual transaction price is unclear, the determination of the standard market price at the time of the transfer and acquisition shall be delegated to the Presidential Decree. Article 115 (1) 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 9229 of Dec. 30, 1978) which is enforced at the time of the original adjudication. Article 115 (1) 3 of the Enforcement Decree of the same Act (A) of the same Act provides that the value assessed by the method of multiple rates for a specific area prescribed by the Commissioner of the National Tax Service at the time of the above (A) shall be the value calculated by the standard market price at the time of transfer under the Local Tax Act at the time of transfer and acquisition at the time of 3. 18.4.5.

Meanwhile, Article 115 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 3098, Dec. 5, 1978; Presidential Decree No. 23, 45, 60(a), and Presidential Decree No. 9229, Dec. 30, 1978; Presidential Decree No. 115(a) of the same Act (amended by Presidential Decree No. 9229, Dec. 30, 1978); in cases where the actual transaction price is unclear, the calculation of transfer margin is made based on the standard market price under the Local Tax Act at the time of transfer and acquisition; thus, even if the Commissioner of the National Tax Service made a public notice of a specific area before the amendment of the above Act and subordinate statutes, such determination is made without any basis, and thus, it cannot be deemed a legitimate public notice of a specific area or rate.

Under the above opinion of the court below, the decision of this case before the amendment of the above Acts and subordinate statutes (amended by April 27, 1978) cannot be deemed to have been made a legitimate public notice of specific areas and multiple rates on the real estate of this case, and therefore, in case where the defendant recognizes that the actual transaction price of the real estate is unclear, the defendant may calculate transfer margin by using the standard market price under the Local Tax Act at the time of transfer and acquisition as the standard market price under Article 115 (1) 1 (b) of the above Income Tax Act, and it cannot be considered as the standard market price at the time of transfer and acquisition. Thus, since the value assessed by the multiple method cannot be considered as the standard market price at the time of transfer and acquisition, the decision of the court below is just in holding that the disposition of this case by the defendant which assessed the value assessed by the multiple method as the standard market price at the time of transfer and acquisition is unlawful within the limit exceeding

2. We examine the Plaintiff’s grounds of appeal.

With respect to No. 1:

The theory that a taxation based on the invalid provision is unlawful, unlike the case where a mistake in the calculation of the tax base is made. However, the pertinent taxation disposition is determined based on the provisions of Articles 23, 45(1), and 60 of the Income Tax Act, which was enforced at the time of the transfer, as well as the provisions of Articles 115(1)1, and 170(3) of the Enforcement Decree of the Income Tax Act, and it is nothing more than a case where there was an error in the calculation of the standard market price. Therefore, it is unreasonable to argue that the pertinent taxation disposition should be revoked in its entirety on the premise that the invalid provision was based on the tax base.

With respect to the second ground:

According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion on the ground that although the plaintiff submitted to the defendant's person in charge of taxation of this case all the data that can confirm the actual transaction price, such as the sales contract for the acquisition and transfer, etc. of this case, the defendant determined the transfer and acquisition price based on the standard market price and thereby rendered the tax disposition of this case. Thus, the tax authority imposed tax on the plaintiff's assertion that it is illegal disposition based on the standard market price only on the case where the actual transaction price can be confirmed based on the data submitted prior to the tax disposition, and if not, there is no evidence to prove that the plaintiff submitted to the defendant the data that can confirm the actual transaction price

However, even if the tax authority imposed a transfer income tax on the basis of the standard market price because the actual transaction price is unclear in imposing the transfer income tax, the tax authority should calculate the transfer income tax based on the actual transaction price under the principle of substantial taxation under the Framework Act on National Taxes and estimate the amount of the tax in question and determine the illegality of the taxation. (See Supreme Court Decision 84Nu339 delivered on September 25, 1984; Supreme Court Decision 84Nu339 delivered on December 11, 1984). Thus, it is obvious in the record that the tax authority submitted the documents, such as a real estate sales contract (Evidence No. 6 through No. 11-2) to the court below by asserting that the plaintiff submitted the documents, which can confirm the actual transaction price to the person in charge of taxation, and it is clear that the court below erred in the misapprehension of legal principles as to the standard market price of this case without examining whether the documents, etc. are reliable or not.

3. Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below. The defendant's appeal is dismissed, and the costs of appeal against the dismissed part are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices

Justices Yoon Il-young (Presiding Justice) Gangwon-young Kim Young-ju