A. The purport and scope of Article 170 (4) 2 (e) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989, and amended by Presidential Decree No. 13194 of Dec. 31, 1990)

B. Whether the transfer of real estate was conducted after the enforcement of the same Enforcement Decree, but there was prior to the enforcement of the same Enforcement Decree, whether the transfer income tax may be excessive (negative)

A. The purport of Article 170 (4) 2 (e) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767 of Aug. 1, 1989, and amended by the Presidential Decree No. 13194 of Dec. 31, 1990) is to be interpreted to be related to the main text and proviso of Article 170 (4) 2 of the Enforcement Decree, and Article 170 (9) of the former Enforcement Decree of the Income Tax Act, and to be subject to heavy taxation by estimating the transaction as an speculative transaction and calculating the transfer margin as the actual transaction value rather than the standard market price. Thus, the tax law provision that provides more aggravated tax liability than the former Enforcement Decree, such as the above Enforcement Decree, can only be applied to cases where the requirements for increase are met after the enforcement of its promulgation. It is consistent with the spirit of Article 13 (2) of the Constitution, which provides for predictability and legal stability in the application of the tax law, and prohibition of property deprivation by retroactive legislation.

B. Where a real estate transfer act was conducted after the enforcement of the same Enforcement Decree, but it was at the time of the acquisition of real estate before the enforcement of the same Enforcement Decree due to a reason for heavy taxation of capital gains tax under Article 170(4)2(e) of the same Enforcement Decree, the transfer margin cannot be calculated based on the above provision, rather than the standard market price, and the transfer income tax shall not be charged.

Articles 170(4)2(e) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 1, 1989; Presidential Decree No. 12767, Dec. 31, 1990); Articles 13, 38, and 59 of the Constitution

A. Supreme Court Decision 92Nu619 delivered on July 14, 1992 (Gong1992, 2449) 92Nu11282 delivered on March 9, 1993 (Gong1993, 1180). Supreme Court Decision 91Nu4829 delivered on December 24, 1991 (Gong192,715)

[Judgment of the court below]

Head of Yongsan Tax Office

Seoul High Court Decision 91Gu6520 delivered on August 19, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal by the defendant litigant are examined.

According to the reasoning of the judgment below, the court below, based on the evidence adopted on May 10, 198, held that the Plaintiff did not report the transfer margin under the above provision 17,256 square meters in common with the Nonparty, but did not report the transfer margin under the above provision 17,256 square meters in order to evade the report of the land transaction contract, the Plaintiff calculated the transfer margin under the above provision 17,000 square meters in violation of the Enforcement Decree of the Act on the Utilization and Management of National Housing Act and did not report the transaction contract on December 20, 1987 and completed the transfer registration for reasons of sale on December 20, 1987 without reporting the transfer margin under the above provision 9, the Plaintiff et al. failed to report the transfer margin under the above provision 1,135 square meters in violation of the Enforcement Decree of the Act on the Management and Utilization of National Housing or the provision 262-2 of the Enforcement Decree of the Act on the Acquisition and Management of Real Estate under the name of the Plaintiff at the time of transfer.

The purport of Article 170 (4) 2 (e) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989, and amended by Presidential Decree No. 13194 of Dec. 31, 1990) which was enforced at the time of the transfer of the instant real estate is related to the main text and proviso of Article 170 (4) 2 of the Enforcement Decree and Article 170 (9) of the above Enforcement Decree, it is interpreted that the transaction falling under the reasons listed in the above provision is presumed as an speculative transaction and thus, it is interpreted that the transaction should be presumed that the transfer margin is calculated as the actual transaction price rather than the standard market price and heavy taxation (see Supreme Court Decision 92Nu619, Jul. 14, 1992). It can only be applied in cases where the requirements for increase are met after its promulgation, and it can protect predictability and legal stability in the application of the tax law, and Article 170 (3) 138(2) of the Constitution prohibition of no taxation without law.

In this case, even though the transfer act was conducted after the enforcement of the above enforcement decree, if it was at the time of the acquisition of the real estate in this case, which was prior to the enforcement of the above enforcement decree, under Article 170 (4) 2 (e) of the above Enforcement Decree, the transfer act was conducted after the enforcement of the above enforcement decree, the transfer income tax should not be excessive by calculating the transfer margin as the standard market price, rather than the actual transaction price, based on the above

The judgment of the court below to the same purport is just and cannot be accepted as it criticizes the judgment of the court below on the basis of the above conflicting views.

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 Kim Yong-ju (Presiding Justice)