The method of calculating transfer margin where only one of the acquisition values and transfer values under the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767 of August 1, 1989) is a transaction with a corporation, etc.

B. In the case of paragraph (a), even though there is no submission of evidentiary documents as to the actual transaction price at the time of filing a preliminary return of gains on transfer or a return of the tax base of capital gains, whether the actual transaction price is confirmed after the actual investigation (affirmative)

A. Article 170 (4) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767 of Aug. 1, 1989) provides that the transfer margin shall be calculated on the basis of the actual transaction price pursuant to the proviso of Article 23 (4) and the proviso of Article 45 (1) 1 of the former Income Tax Act (amended by the Act No. 4281 of Dec. 31, 1990), and subparagraph 1 of the same Article provides that "a case where the actual transaction price at the time of transfer or acquisition is confirmed in transaction with the State, a local government or other corporation" as one of the cases where the actual transaction price is confirmed, the purport of subparagraph 1 is that the acquisition price and the transfer price shall be calculated on the basis of the actual transaction price, and the proviso of Article 170 (1) of the Enforcement Decree of the same Act is excluded.

(b) In cases falling under Article 170 (4) 3 of the former Enforcement Decree of the Income Tax Act, even if there is no evidentiary document on the actual transaction price at the time of a preliminary return of transfer marginal profits or a return of the tax base of transfer marginal profits, if the actual transaction price is revealed through the actual investigation, it shall be deemed that

Articles 23(4) and 45(1)1 of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990), Articles 170(1) and 170(4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989)

A. Supreme Court Decision 88Nu752 delivered on February 24, 1987 (Gong1987,579) 90Nu2635 delivered on June 12, 1990 (Gong1990,1492). Supreme Court Decision 87Nu767 delivered on April 11, 1989 (Gong1989,760) 89Nu648 delivered on March 27, 1990 (Gong190,105) 90Nu3188 delivered on January 29, 191 (Gong191,899)

[Judgment of the court below]

The Director of Gangnam District Office

Seoul High Court Decision 89Gu7346 delivered on June 19, 1990

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

According to the facts established by the court below, the plaintiff purchased from Seongdong-gu Seoul Metropolitan Government on April 18, 1978 a large amount of 56,694,400 won and constructed a maintenance factory building on the ground of 81.8.24, 198 and thereafter owned it on August 24, 198. The plaintiff transferred the land and buildings collectively to another 1.3 billion won, and made a preliminary return on the transfer margin on the transfer margin on April 3, 1987. The defendant calculated the transfer margin on the basis of the standard market price of the land, but the defendant acquired the land from the local government, calculated the actual acquisition value by calculating the transfer margin by calculating the value equivalent to the land by calculating the ratio of the standard market price of the land and the building to the transfer value, and calculated the transfer margin by calculating the transfer margin on the basis of the transfer value, and both the acquisition and transfer value for the building were calculated by calculating the transfer margin based on the standard market price.

Article 170 (4) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767 of Aug. 1, 1989; hereinafter the same shall apply) which was enforced at the time of the above transfer based on the above finalized facts provides that transfer margin shall be calculated based on the actual transaction price pursuant to the proviso of Article 23 (4) and the proviso of Article 45 (1) 1 of the Income Tax Act, and subparagraph 1 of the above provision provides that "in case where the actual transaction price at the time of transfer or acquisition is confirmed in transactions with the State, local governments or other corporations" as one of such cases, "in case where the actual transaction price at the time of transfer or acquisition is confirmed, the actual transaction price at the time of the transaction is calculated based on the actual transaction price which is not the actual transaction price confirmed, and all the acquisition price and transfer price at the time of the above actual transaction price should not be calculated based on the standard market price at the time of the report or actual actual transaction price at the time of 70 (see, e.g., Supreme Court Decision No. 829Nu298Da164, supra.

In addition, in case where the value of land or a building is not distinguished from the actual transaction price due to the transfer of land and a building collectively, the actual transaction price of the land or a building shall be determined in proportion to the value calculated according to the standard market price of the land and the building at the time of transfer or acquisition. As such, there is no ground to view this provision as applicable only to the calculation of transfer margin as the actual transaction price of the land and the building together with the actual transaction price. Thus, in this case, the judgment of the court below that the Defendant determined the actual transaction price of the above real estate in determining the transfer price of the land and the building should be correct, and in this case, it is reasonable to view that the transfer price of the land and the building collectively sold the land and the building should be calculated in proportion to the above standard market price. In the opposite opinion, the argument of the court below to criticize the court below is without merit. The party precedent of the lawsuit (Supreme Court Decision 84Nu592 delivered on October 23, 1984) is not only the case where the land and the building are transferred collectively, but also the case where the fruit trees and the land are transferred together.

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

Justices Yoon Jae-ho (Presiding Justice)