A. Whether Article 170(10) of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 8960) goes against this parent law and becomes null and void (affirmative)

(b) the validity of taxation based on the tax base computed by the invalid provision;

A. Article 170(10) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 8960, Apr. 24, 1978) that provides for the calculation of gains on transfer based on the price investigated by the Commissioner of the National Tax Service, which is not the actual transaction price or the current market price, goes against the provisions of Articles 23(2) and (5), 45(1), and 60 of the Income Tax Act (amended by Presidential Decree No. 3015, Dec. 19, 197) at the time of the mother corporation, and Article 115 of the Enforcement Decree of the same Act, and

B. The taxation disposition based on the provision of invalidation is unlawful, contrary to the mere error in the calculation of the tax base amount.

A. Articles 23(2), 23(5), 45(1), and 60 of the former Income Tax Act (Act No. 3015, Dec. 19, 1977); Articles 170(10)/B of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 8960, Apr. 24, 1978); Article 1 of the Administrative Litigation Act; Article 170(10) of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 8960, Apr. 24, 1978)

(a) 80Nu166 decided Oct. 14, 1980; b. 80Nu195 decided Mar. 23, 1982

Plaintiff 1 and 5 others, Counsel for the defendant-appellant

Head of Daegu Tax Office

Daegu High Court Decision 80Gu114 delivered on February 23, 1982

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal by the defendant litigant are examined.

According to the judgment of the court below and the records, in imposing capital gains tax on the transfer of this case, the defendant calculated capital gains tax on the basis of Article 170 (10) of the Enforcement Decree of the Income Tax Act (the Presidential Decree No. 8960 of April 24, 1978) which was in force at the time of the imposition of capital gains

However, Article 170 (10) of the Enforcement Decree of the Income Tax Act, which provides that capital gains shall be calculated based on the price investigated by the Commissioner of the National Tax Service, which is not the actual transaction price or market price standard, provides that "it goes against the provisions of Articles 23 (2), 23 (5), 45 (1), 60, and Article 115 of the Enforcement Decree of the Income Tax Act at the time of its mother corporation (Article 3015, Act No. 3015, Dec. 197), and there is no other legal basis, and thus, it is null and void and void, unlike the case where the tax base was calculated simply by mistake of the calculation of the tax base, as well as the case where the original disposition was illegal (see, e.g., Supreme Court Decision 80Nu166, Oct. 14, 1980; Supreme Court Decision 80Nu195, Mar. 23, 1982).

Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jung-soo (Presiding Justice)