(a) Requirements for establishing non-taxable practices under Article 18(3) of the Framework Act on National Taxes;

B. The case holding that the disposition of non-taxation solely on the basis of the farmland tax taxation certification cannot be deemed as a established practice in the national tax administration, and only the fact that the decision of non-taxation based on the above data was reversed after the on-site investigation and that the tax disposition cannot be deemed as unlawful against the good faith

C. Whether Article 94(5) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 11812, Dec. 31, 1985; Presidential Decree No. 12154, May 8, 1987; Presidential Decree No. 12154, Dec. 31, 1985; and Article 94(5) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No.

A. In order to establish a non-taxable practice under Article 18(3) of the Framework Act on National Taxes, there should be objective facts that the tax authorities have not imposed taxes on the matter for a considerable period of time, and the tax authorities should have known that it is possible to impose taxes on the matter, and such intent should be expressed explicitly or implicitly. If the tax authorities have known that it falls under the non-taxable object and found any omission or error in the tax base and tax amount thereafter, they may investigate and determine it.

B. The case holding that, in case where the head of a tax office issued a tax disposition on each transfer income by mistake of transfer of self-employed farmland for not less than eight years based on the certificate of self-taxation submitted in Eul farmland tax and the certificate of self-reliance prepared in falsity, but later, it cannot be deemed as a established practice in the national tax administration, on the ground that the above proof of farmland tax or the certificate of non-taxation cannot be deemed as a established practice in the national tax administration, and only the fact that the tax authority reversed the non-taxation decision and issued a tax disposition again cannot be deemed as unlawful against the principle of good faith.

C. Article 45(1) of the former Income Tax Act (amended by Presidential Decree No. 11812, Dec. 31, 1987; Presidential Decree No. 12154, Dec. 31, 1990; hereinafter “former Income Tax Act”) which provides for the calculation of necessary expenses of capital gains delegates the contents or scope of capital expenditure and transfer expenses to the Presidential Decree. However, Article 45(1)2 of the former Income Tax Act (amended by Presidential Decree No. 12154, Dec. 31, 1990; hereinafter “the former Income Tax Act”) provides for the calculation of necessary expenses of capital gains to the Corporation, but Article 94(5) of the former Income Tax Act provides that capital expenditure and transfer expenses shall not be deemed null and void because it limits the delegation of the Income Tax Act with respect to equipment expenses and improvement expenses to the mother corporation without any ground to the delegation of the Income Tax Act, and does not have to be deemed null and void due to the violation of any other actual provision of the Act.

A.B. Article 18(3)(b) of the Framework Act on National Taxes; Article 15(3) of the former Income Tax Act (amended by Act No. 4019, Dec. 26, 198); Article 5(1) of the former Income Tax Act (amended by Act No. 4281, Dec. 31, 1990); Article 94(5) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 11812, Dec. 31, 1985; Presidential Decree No. 12154, May 8, 1987);

A. Supreme Court Decision 90Nu202 delivered on June 26, 1990 (Gong1990, 1610) 89Nu3816 delivered on October 10, 1990 (Gong1990, 2310) 90Nu8947 delivered on May 28, 1991 (Gong191, 1807)

Park Hong (Attorney Park Hong-hoon, Counsel for plaintiff-appellant)

head of Sung Dong Tax Office

Seoul High Court Decision 89Gu3702 delivered on October 17, 1990

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The plaintiff's appeal is dismissed, and all costs of appeal are assessed against the plaintiff.

1. We examine the Plaintiff’s grounds of appeal.

On the first ground for appeal

Examining the reasoning of the judgment below in light of the records, we affirm the court below's decision that did not recognize the plaintiff's assertion that the land of this case transferred by the plaintiff during the period from 1984 to 198 was "a person who has been in self-defense for not less than eight years until the time of transfer" and that the plaintiff met the requirements for non-taxation of capital gains tax under Article 5 subparagraph 6 (d) of the Income Tax Act (amended by Act No. 4019 of Dec. 26, 198) prior to the amendment, and there was no violation of the rules of evidence or the incomplete trial

The court below held that the plaintiff had been residing in Seoul since 1968, and since March 1975 that the plaintiff operated the coffee manufacturing business, Co., Ltd., Ltd., as a part of the opposing facts that the plaintiff did not recognize that the land of this case was self-defined, and that the plaintiff had not been self-defined for not less than eight consecutive years, and the precedents of the theory of the lawsuit (party members 86Nu204 delivered on July 8, 1986) are not appropriate in this case, and even though the land of this case was not cultivated as a result of the implementation of the compartmentalization and rearrangement project, it cannot be said that the plaintiff could not be self-defined until April 12, 1987, which was the date of the land substitution final public notice. Accordingly, there is no reason to discuss this issue.

On the second ground for appeal

In order for the establishment of non-taxation practices under Article 18(3) of the Framework Act on National Taxes to be established, there should be an objective fact that the tax authorities did not impose taxes on the matter for a considerable period of time, and there should be an intention to not impose taxes on the matter, and such intention should be expressed explicitly or explicitly (see Supreme Court Decision 89Nu3816, Oct. 10, 1990; Supreme Court Decision 89Nu3816, Oct. 10, 1990; Supreme Court Decision 89Nu3816, Oct. 10, 199).

According to the facts acknowledged by the court below, the plaintiff transferred 3 lots among the land in this case in 1984 and 5 lots in 1987, and submitted a false certificate of tax assessment of the farmland tax tax of Category B issued by the head of Incheon Northern District Office at the district tax office having jurisdiction over the domicile, and had the head of the district tax office having jurisdiction over the domicile address know the local situation for 8 years or more, and there was a non-taxation decision. However, after transferring the remaining 6 parcels in 1988, it was confirmed that there was no self-regulation for 8 years or more from the Commissioner of the National Tax Service as a suspect of real estate speculation and the field investigation was enforced. Accordingly, it cannot be accepted the argument that the non-taxation decision was a practice of national tax administration which was generally accepted by the head of the district tax office having jurisdiction over the domicile, and the tax authority cannot be viewed as unlawful only because it reversed the non-taxation decision after re-taxation decision and it did not violate the principle of good faith.

2. We examine the defendant's grounds of appeal.

A. Under the standard market price, the court below recognized that the land transferred in the year 1987 according to the transfer margin for the land of this case was paid in 2,837,90 won for replotting settlement money, 3,180,000 won for brokerage commission, 150,000 won for land division, 6,167,90 won for total land division, and 1,623,740 won for the land transferred in the year 1988, 4,20,000 won for replotting settlement money, 5,823,740 won for total amount, 5,000 won for brokerage commission, and 4,200,000 won for land substitution settlement money and expenses for land division were the improvement expenses under Article 45 (1) 2 of the Income Tax Act, and the brokerage commission is the transfer expenses under subparagraph 4.

B. However, according to Article 94(5) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 11812, Dec. 31, 1985; Presidential Decree No. 12154, May 8, 1987; Presidential Decree No. 12154, Dec. 31, 1987; Presidential Decree No. 12154, Dec. 31, 1990) which the Plaintiff had enforced at the time of the transfer of the pertinent land, in case where the transfer margin is calculated based on the standard market price according to the method under the main sentence of Article 45(1)1 of the Income Tax Act (amended by Act No. 4281, Dec. 31, 1990), notwithstanding the provisions of paragraphs (1) through (4), the amount calculated by adding 7/100 of the standard market price or the standard market

C. However, Article 45(1) of the Income Tax Act, which provides for the calculation of necessary expenses of capital gains, provides that the capital expenditure and transfer expenses prescribed by the Presidential Decree shall be deemed necessary expenses, and the contents and scope thereof shall be delegated to the Presidential Decree. However, subparagraph 2 of the same Article provides that the facilities expenses and improvement expenses shall be deemed necessary expenses, and there is no ground provision for delegation as above, and there is no difference between the case of calculating the gains from transfer based on the actual transaction price

Therefore, Article 94 (5) of the Enforcement Decree of the Income Tax Act, which provides necessary expenses for the calculation of gains from transfer according to the standard market price, shall not be deemed null and void because it was delegated by the Income Tax Act to the capital expenditure and transfer expenses. However, the restriction of installation and improvement expenses without any ground to delegation by the Income Tax Act shall not be deemed null and void because it violates the Income Tax Act as the mother corporation. Unless there are other circumstances, it shall be reasonable to deduct installation and improvement expenses as necessary expenses.

D. However, according to the above, in calculating the transfer margin of this case, the court below deducted not only facility expenses and measurement expenses, but also transfer expenses as necessary expenses. According to the tax calculation table of the court below, it can be known that the transfer expenses exceed 7/100 of the standard market price at the time of acquisition or registration tax base amount at the time of its acquisition. This is unlawful and it is reasonable to this extent.

3. Therefore, the part of the judgment of the court below against the defendant is reversed and remanded to the court below. The plaintiff's appeal is dismissed and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Yong-ju (Presiding Justice)