A. Whether Article 170(4)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 1, 1989) and Article 72(3)5 of the Regulations on the Management of Property Tax (amended by Presidential Decree No. 980, Aug. 1, 1989) are invalid provisions against the principle of no taxation without law (negative)

B. A letter of promulgation of National Tax Service Directive under the preceding paragraph (negative)

A. Article 170(4)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) provides general standards for the matters delegated by the Act and delegates again the provisions of detailed matters to the Commissioner of the National Tax Service. It does not exceed the limit of delegation. Article 72(3)5 of the Regulations on the Management of Property Tax Investigation under Article 980 of the National Tax Service’s Directive provides that “when real estate is acquired within one year, and transferred within one year,” and it is obvious that the content of the provision is clearly and thus, it does not grant the Commissioner of the National Tax Service with excessive discretion, and thus, it cannot be said

B. Paragraph (1) of the same Article is not only the legal basis for taxation, but also the administrative rules themselves are administrative rules, and thus, it cannot be denied its validity on the ground that the National Tax Service’s directives were not promulgated.

A. Article 170(4)2 of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767 of Aug. 1, 1989), Article 59 of the Constitution

B. Supreme Court Decision 87Nu654 delivered on March 22, 1988, 89Nu3328 delivered on October 24, 1989

[Defendant-Appellee] Defendant 1 and 2 others, Counsel for defendant-appellee

Head of Eastern Tax Office and one other

Busan High Court Decision 88Gu1516 delivered on May 9, 1989

The appeal is dismissed.

The costs of appeal are assessed against the plaintiffs.

As to the Plaintiffs’ grounds of appeal:

1. 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 cases prescribed by the Presidential Decree” in the proviso of Articles 23 (4) and 45 (1) of the Act refers to the cases falling under any of the following subparagraphs,” and subparagraph 2 provides that “Where it is deemed necessary to restrain the speculation of real estate over a certain scale determined by the Commissioner of the National Tax Service according to the region, and it is possible to confirm the actual transaction price at the time of transfer or acquisition in transactions designated by the Commissioner of the National Tax Service.” Thus, the above Enforcement Decree provides general standards for the matters delegated by the Act and delegates the provisions for detailed matters to the Commissioner of the National Tax Service, which goes beyond the limits of delegation. It is clear that the National Tax Service Directive No. 980 of the Regulations on the Investigation of Property Tax under Article 980, which provides the basis for the taxation of this case, and thus does not provide for the Commissioner of the National Tax Service with no exception or discretionary authority.

The above instructions given by the National Tax Service not only serve as the legal basis for taxation (see Supreme Court Decision 87Nu654 delivered on March 22, 1988) but also it is an administrative rule that is not itself, and thus, cannot be denied its validity on the ground that they were not promulgated (see Supreme Court Decision 89Nu3328 delivered on October 24, 1989).

In addition, in applying Article 72 (3) 5 of the above Directive, it is not necessary to examine and determine whether a real estate transferor has an object of speculation, and in confirming the actual transaction price at the time of transfer or acquisition, it is not necessarily required to be based on a sales contract, and therefore, it cannot be said that there is an error of incomplete deliberation such as a theory of lawsuit. The argument is groundless.

Therefore, all appeals are 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 on the bench.

Justices Yoon Young-young (Presiding Justice)