(a) The method of calculating gains on transfer where the actual transaction price at the time of transfer of land substituted for land transacted with a corporation is verified, but it is unclear at the

(b) The scope of installation and improvement expenses to be deducted in the calculation of gains on transfer;

C. Whether imposition of capital gains tax without going through consultation procedures under Article 170 (9) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13540 of Dec. 31, 1991), Article 82-2 (1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1875 of Feb. 29, 1992) is appropriate

A. Where the actual transaction price at the time of transfer is confirmed as a transaction with a corporation, but the actual transaction price at the time of acquisition is not confirmed, the transfer price shall be calculated as one of the actual transaction price under Articles 23(4) and 45(1) of the former Income Tax Act (amended by Act No. 4281 of Aug. 1, 1990), the main text and proviso of Article 170(1), Article 170(4)1 of the Enforcement Decree (amended by Presidential Decree No. 12767 of Aug. 1, 1989), Article 115(1)1(c) (amended by Presidential Decree No. 1294 of May 1, 1990), Article 56-5(5)1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1294 of Sep. 1, 1990), if the previous landowner transfers the substitute land at the time of transfer, the transfer price shall be calculated as the actual transaction price.

Area of previous land ¡¿ Standard market price at the time of acquisition of previous land

--------- of the transfer value of delivered land 】 -------- 】 transfer value of land 】 (number of transferred land) 】 (number of transferred land) 】 (number of transferred land);

Delivery land area ¡¿ Standard market price of taxation at the time of transfer of land

by the formula of "......"

B. In calculating gains on transfer, as long as the acquisition value is calculated on the basis of the above conversion value, one of the necessary expenses to be deducted, the acquisition value shall be calculated on the basis of the standard market price, and thus, it shall be calculated on the basis of Article 94 (5) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) and Article 94 (5) of the same Act, in principle, the amount equivalent to 7/100 of the standard market price at the time of acquisition of registration tax pursuant to Article 45 (1) 1 of the Act shall be deducted by adding only the amount equivalent to 7/100 of the standard market price at the time of acquisition to the above conversion value: Provided, That with respect to equipment cost and improvement cost, it has been reduced without the ground of delegation of the Income Tax Act, and thus, it shall be deemed null and void as it violates

C. According to Article 170(9) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13540 of Dec. 31, 191), and Article 82-2 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1875 of Feb. 29, 1992), the head of the competent tax office having jurisdiction over the location may have a certain person seek advice if deemed necessary for the determination of capital gains, but such provision cannot be deemed to be an effective provision in the taxation procedure, and thus, the imposition of capital gains tax cannot be deemed unlawful

A. Articles 23(4) and 45(1) of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990); Article 170(1) main sentence and proviso of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989); Article 115(1)1 (c) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12994 of May 1, 1990); Article 16(1)1 of the Enforcement Rule of the Income Tax Act; Article 56-5(5)1 (b) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 1832 of Sep. 1, 1990); Article 170(4)1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12767 of Aug. 12, 1989); Article 30(19(2)3)1 of the Enforcement Decree of the same Act

B. Supreme Court en banc Decision 90Nu9360 Decided October 22, 1991 (Gong1991, 2855) 91Nu7149 Decided April 14, 1992 (Gong192, 1631)

Plaintiff

Deputy Director of the Tax Office

Seoul High Court Decision 90Gu22815 delivered on February 20, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first and second grounds for appeal

A. According to the reasoning of the judgment below, the court below determined that the plaintiff acquired the land of this case on August 22, 1970 and constructed the building of this case on the land of this case on April 10, 1984, and the price at the time of voluntary auction on August 13, 1987 and confirmed that the actual transaction price at the time of transfer should not be confirmed but the actual transaction price at the time of the transfer should be confirmed. The defendant's disposition of this case is justified in its determination that the transfer price at the time of transfer, the acquisition price at the time of constructive acquisition, the price at the time of the constructive acquisition, and the price at the time of conversion is calculated based on the conversion price, but it is not erroneous in law such as misconception of the size of the building of this case without calculating the conversion price by land and building, and the acquisition price at the time of the building of this case should be calculated based on the method of calculating the calculation and the size of the building of this case, the plaintiff's disposition of this case's land of this case should not be converted to necessary expenses.

B. The actual transaction price at the time of transfer with a corporation shall be confirmed, but if the actual transaction price at the time of its transfer is not confirmed, the acquisition price shall be calculated according to Articles 23(4), 45(1) (amended by Act No. 4281 of Aug. 1, 1990), the main sentence of and proviso to Article 170(1) and (4) 1 (amended by Presidential Decree No. 12767 of Aug. 1, 1989), Article 115(1)1 (c) (amended by Presidential Decree No. 1294 of May 1, 1990) of the Income Tax Act; Article 56-5(5)1 (amended by Presidential Decree No. 1294 of Sep. 1, 1990); Article 45(1) of the former Income Tax Act; Article 170(1)-1 of the former Enforcement Decree of the Income Tax Act; Article --6-1 of the previous land to be converted-1-6-3-1 of the land at the time;

In addition, in calculating the transfer margin, the remaining part of the necessary expenses to be deducted, excluding the acquisition value, shall be calculated based on the conversion value, which is one of the standard market price, so long as the acquisition value is calculated accordingly, in principle, the acquisition value shall be calculated based on the conversion value under Article 94 (5) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12154, May 8, 1987; Presidential Decree No. 12767, Aug. 1, 1989); and it shall be calculated based on the standard market price in accordance with the main sentence of Article 45 (1) 1 of the Act, and only the amount equivalent to 7/100 of the standard market price of the registration tax at the time of acquisition shall be deducted by adding the conversion value to the above conversion value pursuant to subparagraph 1 of the same Article. However, in an exceptional case, with respect to the installation and improvement expenses, it shall be deemed null and void as it is in violation of the Income Tax Act (see Supreme Court Decision 90Nu360, Oct. 22, 19990).

According to the records, as to the propriety of the conversion acquisition value recognized by the court below, the land in this case was replaced with 780 m2, 780 m2, 780 m30 m2, 210 m2, Seocheon-dong, Seocheon-dong, Seocheon-dong, the previous land owned by the plaintiff, and 210 m2,651 m2,651 m2. The above previous land was acquired before December 31, 1974. However, under the premise that the land in this case was not substituted with a substitute land, the conversion of acquisition value according to the conversion method under Article 56-5 (5) 1 of the Enforcement Decree of the Income Tax Act is erroneous as pointed out by the court below, on the premise that the acquisition value of the land in this case, which is the substitute land, was acquired on January 1, 1975, the acquisition value of the land in this case, which was converted to the above 80 m200 m2.

All arguments are without merit.

2. On the third ground for appeal

According to Article 170(9) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13540 of Dec. 31, 191), and Article 82-2 of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1875 of Feb. 29, 1992), the head of the competent tax office having jurisdiction over the location may give advice to a certain person if deemed necessary for the determination of capital gains. However, such provision cannot be deemed a valid provision in the taxation procedure, and thus, the disposition of this case cannot be deemed unlawful on the ground that the defendant did not undergo the above procedures for consultation, and therefore, the lower court rejected the plaintiff's assertion

3. On the fourth ground for appeal

In the 9th oral proceeding of the lower court, the Defendant, even though it was recognized that the Plaintiff did not state the preparatory brief submitted by the Plaintiff on December 4, 1991 as the Plaintiff’s statement, did not state it as the Plaintiff stated, and as long as the lower court determined that it was deemed that the Plaintiff stated it, it cannot be a legitimate ground of appeal due to an error in the protocol, and other arguments are merely an attack from the standpoint of opposition to the lower judgment. The arguments are without merit.

4. 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 Jeong Jong-ho (Presiding Justice)