Whether the proviso of Article 170(1) of the Enforcement Decree of the Income Tax Act violates the parent law

The proviso of Article 170 (1) of the Enforcement Decree of the Income Tax Act cannot be deemed to be inconsistent with the provisions of Article 23 (4) and Article 45 (1) 1 of the Income Tax Act, which is the mother corporation, and it does not require a separate delegation provision of the parent law since it is merely the express method for calculating gains on transfer which is possible to interpret the parent law.

Articles 23(4) and 45(1)1 of the Income Tax Act, Article 170(1) of the Enforcement Decree of the Income Tax Act

Supreme Court Decision 85Nu281 Decided July 8, 1986, 84Nu490 Decided July 22, 1986, Supreme Court Decision 85Nu679 Decided December 23, 1986 (dong)

Plaintiff

Head of Daegu Tax Office

Daegu High Court Decision 85Gu338 delivered on July 23, 1986

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

We examine the grounds of appeal.

1. The reasoning of the judgment below is that the plaintiff's land acquired on February 15, 1956 is transferred as a road site pursuant to the Act on Special Cases concerning the Acquisition of Land and Compensation for Losses to Daegu Metropolitan City, Daegu, 1984, and received 6,043,30 won as compensation. The defendant decided that the transfer price of the plaintiff's land was confirmed as a transaction with a local government but the transfer price was not confirmed, and that the transfer price was not confirmed as a transaction with a local government, and the transfer price was determined as a transaction price pursuant to the proviso of Article 170 (1), Article 170 (4) 1, Article 115 (1) 1 (c), and Article 56-5 (5) 1 (c) of the Enforcement Decree of the Income Tax Act and the amount calculated based on this determination as the acquisition price and the transfer income tax base were determined as the transfer income tax base. However, the provisions of the proviso of Article 170 (1) of the Enforcement Decree of the Income Tax Act (the defense of December 31, 1982) were invalid.

2. However, the provision of the proviso of Article 170 (1) of the Enforcement Decree of the Income Tax Act cannot be deemed to be inconsistent with the provisions of Articles 23 (4) and 45 (1) 1 of the Income Tax Act, a parent corporation, which is not in accordance with the provisions of the proviso of Article 170 (1) of the Enforcement Decree of the Income Tax Act. This is merely a clear statement in the calculation method of transfer margin possible in the interpretation of the mother law, and it does not require a separate delegation provision in the parent law (see Supreme Court Decision 85Nu281 delivered on July 8, 1986). Thus, the judgment of the court below is erroneous in interpreting the proviso of Article 170 (1

3. Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of 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 judges.

Justices Lee B-soo (Presiding Justice)