The purport of the proviso of Article 9(1) of the Act on Special Measures for the Control of Real Estate Dumping

The purport of the proviso of Article 9(1) of the Act on Special Measures for the Control of Real Estate Speculative Measures is that, insofar as there is no request from a taxpayer that has a significant difference from the actual gains from the transfer of land or there is no request from the taxpayer that there is a substantial difference from the actual gains from the transfer of land, or the competent tax office recognizes that there is no substantial difference between the taxpayer and the taxpayer, not from the purport of the provision that the tax base should be determined by its own authority, it shall be reasonable to view that the taxpayer may be relieved by asserting that there is a substantial difference in

Article 9 of the Special Measures Tax Act on the Control of Real Estate Speculation

Plaintiff

Attorney Lee Dong-dong et al., Counsel for the defendant-appellant

Seoul High Court Decision 72Gu502 delivered on June 26, 1973

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

The defendant's agent's ground of appeal No. 2

Article 9 (1) (proviso) of the Special Measures Act on the Control of Real Estate Speculative Measures provides that gains from the transfer of land shall be calculated based on the actual transaction price in cases where it is recognized that there is a substantial difference from the actual gains from the transfer as prescribed by the Presidential Decree. The purport of this provision is, rather than that of the provision that the defendant should investigate ex officio whether or not there is a substantial difference (including cases where a taxpayer who is the plaintiff does not make an application within a fixed period as in this case). It is reasonable to view that the calculation of gains from the transfer of real estate is merely an purport of calculating gains from the transfer according to the actual transaction price in cases where the defendant recognizes a substantial difference in the above provisions. In addition, if the defendant does not recognize that there is no application by the taxpayer under the latter part of the proviso of Article 9 (1) of the above Act, and if the tax base has been calculated as a result of driving away from the above provision of the main sentence of Article 9 (1) of the Act, it is reasonable to deem that the plaintiff, who is the taxpayer, has a substantial difference in the tax base of this case.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Seoul High Court which is the court below. This decision is delivered with the assent of all participating judges.

Justices Han-jin (Presiding Justice)