The standard market price applicable to the calculation of gains on transfer where the acquisition and transfer of real estate were in the same year but not within the same period of adjustment;

Article 115(3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) and Article 56-5(2)1 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995) premised on the fact that the acquisition and transfer were within the same standard market price adjustment period, so even if the acquisition and transfer were within the same year, they cannot be applied unless they were within the same standard market price adjustment period. Therefore, where the acquisition were made before the date of notice of the standard market price and the transfer was made after that date, the above provision cannot be applied, and the transfer margin should be calculated by applying the immediately preceding standard market price to the acquisition pursuant to Article 115(6) of the former Enforcement Decree

Article 115 (3) and (6) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of December 31, 1994), Article 56-5 (2) 1 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

Plaintiff

Head of the Tax Office;

Seoul High Court Decision 93Gu32622 delivered on November 21, 1995

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below calculated the transfer margin by calculating the standard market price at the time of transfer in the formula of Article 115 (3) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) and Article 56-5 (2) 1 of the Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995), on the basis that the standard market price at the time of transfer is the same at the time of the acquisition and transfer, and calculated the tax amount based on this formula.

However, Article 115(3) of the Enforcement Decree of the above Act and Article 56-5(2)1 of the Enforcement Rule are premised on the fact that acquisition and transfer were within the same standard market price adjustment period. Thus, even if acquisition and transfer were within the same year, it cannot be applied unless they were within the same standard market price adjustment period.

Therefore, as in the case of this case, where the acquisition was made before and after the date of the public notice of the standard market price, the above provision shall not be applied, and the transfer margin shall be calculated by applying the standard market price immediately before the acquisition pursuant to Article 115 (6) of the Enforcement Decree. Accordingly, the judgment below, which calculated the tax amount by the formula under Article 56-5 (2) 1 of the Enforcement Rule, is erroneous in the misunderstanding of legal principles as to the scope of application of the above provisions, which affected the conclusion of the judgment. The argument

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-soo (Presiding Justice)