(a) Where documentary evidence under Article 170 (4) 3 of the former Enforcement Decree of the Income Tax Act is not submitted within a time limit, the standards for calculating gains on transfer; and

(b) Whether the proviso to Article 170 (1) of the former Enforcement Decree of the Income Tax Act can apply to transactions that do not fall under any item of Article 170 (4) 2

(c) In the case of transactions that do not fall under the category of transactions under Article 170 (4) 2 of the former Enforcement Decree of the Income Tax Act, whether the proviso to paragraph (1) of the same Article does not apply violates the principle of tax equality

A. Each provision of Article 23 (4) and Article 45 (1) 1 of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990), and Article 170 (4) 3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14083 of Dec. 31, 1993) declared that in case where assets are transferred, the principle of standard market price should be converted from the existing actual transaction price in calculating transfer margin. Thus, in case where assets are transferred and evidential documents which can confirm actual transaction price under subparagraph 3 of the Enforcement Decree of the same Act are not submitted within the deadline, the transfer margin should be calculated based on the standard market price even if the actual transaction price is confirmed, and it shall not be based on the actual transaction price

B. In light of the purport of Article 170(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12994, May 1, 1990), there is no room for applying the proviso of Article 170(4)2 to any transaction that does not fall under any item of Article 170(4)2.

C. Article 170(4)2 of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 17010, Apr. 2, 2001; Presidential Decree No. 2010, Apr. 2, 2011; Presidential Decree No. 20135, Apr. 2, 2011; Presidential Decree No. 20135, Apr. 2, 2011).

A. Articles 23(4) and 45(1)1 of the former Income Tax Act (amended by Act No. 4281, Dec. 31, 1990); Article 170(4)3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14083, Dec. 31, 1993); Article 170(1)2(c) of the former Enforcement Decree of the Income Tax Act; Article 170(4)2(c) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1294, May 1, 1990); Articles 11, 23, and 59 of the Constitution of the Republic of Korea

A. Supreme Court Decision 90Nu10315 delivered on April 12, 1991 (Gong1991, 1400) 92Nu18498 delivered on March 23, 1993 (Gong1993Sang, 1323) 93Nu1884 delivered on March 22, 1994 (Gong194Sang, 1359)

[Judgment of the court below]

Head of Seogsan Tax Office

Busan High Court Decision 93Gu5628 delivered on December 8, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The plaintiff's grounds of appeal are examined.

1. The theory of lawsuit did not determine the plaintiff's assertion that the transfer margin should be calculated on the basis of the actual transfer value of the land of this case as long as the judgment of the court below revealed the real transfer value. However, according to the reasoning of the court below, the court below's argument is reasonable in calculating the transfer margin based on the standard market price in the case of land of this case on the premise that the plaintiff's above assertion is without merit, but it is obvious that the transfer margin calculated accordingly cannot exceed the actual transfer value, so

2. Each provision of Articles 23 (4) and 45 (1) 1 of the Income Tax Act (amended by Presidential Decree No. 4281 of Dec. 31, 1990) and Article 170 (4) 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14083 of Dec. 31, 1993) declares that in the case of transfer of assets, the principle of standard market price should be converted from the existing actual market price in calculating transfer margin, and in the case of transfer of assets, where evidential documents confirming the actual market price under subparagraph 3 of the same Article are not submitted within the time limit, the transfer margin shall be calculated based on the standard market price even if the actual market price is confirmed, and it shall not be based on the actual market price (see, e.g., Supreme Court Decisions 93Nu1884, Mar. 22, 1994; 92Nu18498, Mar. 23, 1993; 200).

The issue is that such interpretation violates the principle of tax equality, the principle of no taxation without representation, and the provision on property rights guarantee in light of the equity with the case of the transaction under Article 4 (4) 2. However, in the case of the type of speculative transaction, Article 4 (4) 2 of the same Act intends to regulate the relevant speculative transaction relatively more unfavorable than other general transactions by calculating gains on transfer based on the actual transaction price, and thus, it is an exception to the principle of standard market price. Thus, in the case of the instant transaction that does not fall under the type of transaction as provided in the above provision, it cannot be said that it does not apply to

3. 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 Lee Jae-soo (Presiding Justice)