(a) Methods of calculating gains on transfer, in case where there are no data to clarify the actual transaction price, although the preliminary return or final return is made;

B. The court's assistance in the case where the actual transaction price is determined among the lawsuits for cancellation of taxation by decision of estimated investigation.

A. Even if the tax authority determines capital gains based on the standard market price on the assumption that there is no preliminary return or final return on transfer margin as to the transfer of assets at the time of enforcement of the former Income Tax Act (amended by Act No. 3168 of Aug. 14, 1979), and the actual transaction price is clearly revealed by the data investigated by the tax authority or the data submitted by the taxpayer, the transfer margin based on the actual transaction price shall be calculated, and the method of the preliminary investigation shall not be based

B. In applying the former Income Tax Act, even if the tax authority had to impose tax based on the standard market price because the actual transaction price was unclear at the time when the transfer income tax was imposed, if the actual transaction price was found in the lawsuit seeking the cancellation of the disposition, the tax amount calculated by calculating the transfer income tax and the determination of whether the taxation was unlawful should

A.B. Articles 23(4) and 45(1) of the former Income Tax Act (amended by Act No. 3168 of Aug. 14, 1979); Articles 170(3) and 170(4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 9698 of Dec. 31, 1979)

A. Supreme Court Decision 83Nu553 delivered on December 27, 1983; Supreme Court Decision 84Nu339 delivered on December 11, 1984

[Judgment of the court below]

Head of Gwangju District Tax Office

Seoul High Court Decision 85Gu894 delivered on March 17, 1986

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

Article 23(4) and Article 45(1) of the former Income Tax Act (amended by Act No. 3168, Aug. 14, 1979); Article 170(3) and (4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 9698, Dec. 31, 1979), applicable to this case, where a resident who transfers assets, makes a preliminary return of transfer margin or final return of tax base, makes a decision on transfer margin or final return of tax base, capital gains according to the actual transaction price shall be determined, and where the preliminary return of transfer margin or final return of tax base is not made, capital gains can be determined based on the standard market price, which is the method of estimated assessment, by presumption that the actual transaction price is unclear, on the transfer of assets at the time of the enforcement of the former Income Tax Act, even if the tax office determines capital gains based on the standard market price, i.e., where the actual transaction price is clearly revealed by the data investigated by the tax authorities or the data submitted by the taxpayer, it shall be determined based on the standard market price.

In addition, in a lawsuit seeking cancellation of a tax disposition, the object of the trial shall be deemed to be the existence of the taxable value decided by the tax authority, and therefore, the litigant may submit all the data on the existence or scope of the tax base until the closing of argument in the lawsuit seeking cancellation of the tax disposition and seek a judgment on the legitimacy of the tax disposition based on the data submitted until that time. In applying the former Income Tax Act, even if the tax authority had no choice but to make a tax disposition based on the standard market price because the actual transaction price was unclear at the time of the imposition of the transfer income tax, if the actual transaction price was found in the lawsuit seeking cancellation of the tax disposition, the tax amount calculated by calculating the transfer income tax and the determination of whether the tax disposition was unlawful (see

According to the reasoning of the judgment below, the court below determined that the plaintiff acquired shares of 271 square meters in 271 square meters from August 21, 1978, which were publicly notified by the Commissioner of the National Tax Service as a specific area by the Commissioner of the National Tax Service, and transferred to other persons as of July 11, 1979, and did not make the profit accruing from the transfer or the final return on the transfer of the above real estate. The defendant assessed the acquisition value and the transfer value of the above real estate as the standard market price by the method publicly notified by the Commissioner of the National Tax Service for the reason that the actual transaction value cannot be known in the absence of the profit accruing from the transfer or the final return on the transfer of the above real estate and calculated the transfer value as the standard market price by the method publicly notified by the Commissioner of the National Tax Service. However, according to the evidence, the court below erred in the misapprehension of legal principles as to the above tax assessment or determination on the transfer value of the above real estate, and it did not err in the misapprehension of the legal principles as to the above amount of tax assessment.

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

Justices Lee Jae-hee (Presiding Justice)