At the time of enforcement of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982), where the tax authority imposed a tax assessment based on the standard market price on the grounds that the actual transaction value is unclear, and it is found that the actual transaction value has been determined during the revocation litigation

At the time of enforcement of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982), Article 23 (4) and Article 45 (1) 1 of the Income Tax Act and Article 170 (3) 1 and 2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10120 of Dec. 31, 1980), when the tax authority imposes capital gains tax, etc., even though the actual transaction price is unclear due to the uncertainty of the actual transaction price, if the actual transaction price in the lawsuit seeking cancellation of the disposition is proved, the excess tax shall be calculated according to the principle of substantial taxation under the Framework Act on National Taxes, and whether the taxation is unlawful or not should be determined.

Articles 23(4) and 45(1)1 of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982); Articles 170(3)1 and 2 of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 10120 of Dec. 31, 1980); Article 14 of the Framework Act on National Taxes

Supreme Court Decision 84Nu106 Delivered on September 25, 1984, Supreme Court Decision 84Nu394 Delivered on October 23, 1984

Plaintiff

Head of Dong Daegu Tax Office

Daegu High Court Decision 83Gu264 delivered on April 12, 1984

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

1. The plaintiff's grounds of appeal are examined.

According to the reasoning of the judgment of the court below, the court below recognized the fact that the plaintiff transferred the real estate in this case and did not make a preliminary return on the gains from transfer of assets or a final return on tax base under the Income Tax Act, and determined the transfer income tax of this case by the defendant who calculated the gains from transfer based on the standard market

2. However, since a lawsuit seeking cancellation of a taxation disposition is based on the substantive and procedural illegality of the taxation disposition, it shall be deemed that the taxation authority's existence or absence of the taxable value determined. Thus, a party to the lawsuit may present all the data on the existence or absence of the tax base until the closing of argument in the lawsuit seeking cancellation of the taxation disposition and seek a judgment on the legitimacy of the taxation disposition based on the data submitted up to that time. According to Articles 23 (4) and 45 (1) 1 of the Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982), which was enforced at the time of the transfer of the case, the transfer and acquisition value shall be based on the actual transaction value, and if the actual transaction value is unclear, it shall be determined based on the standard market price at the time of the transfer and acquisition of the assets (Presidential Decree No. 10120 of Dec. 31, 1980).

Therefore, according to the records in this case, the plaintiff asserted that he reported the confirmation of income of the real estate in this case and submitted documents, such as a real estate sales contract, judgment, etc., to the court below on the actual transaction price at the time of transfer and acquisition. Thus, the court below should have deliberated and judged whether the above documents are reliable or reliable, but the court below did not reach such determination and held that the disposition of this case based on the standard market price was lawful, or there is an error of law by misapprehending the legal principles on the above Income Tax Act or by failing to exhaust all necessary deliberations. Thus, the appeal

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Young-ju (Presiding Justice)