Calculation basis of capital gains in the event that no expected return or final return has been made;

If there is no expected return on the profits accruing from the transfer or the final return on tax base, or the actual transaction value is unclear, the calculation of capital gains shall be calculated as the transfer value assessed according to the current base value, and in this case, the difference between the actual market

Article 23 of the Income Tax Act (Act No. 2705, Dec. 24, 1974); Article 170 of the Enforcement Decree of the Income Tax Act (Act No. 7458, Dec. 31, 1974);

Plaintiff

The litigation performer Kim Hong, Park Jong-o of the Dong Daejeon District Office

Seoul High Court Decision 76Gu798 delivered on July 27, 1977

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below that the transfer income tax was calculated on the basis of 197.7.9, 23, and 40 square meters for the acquisition of the ownership of the above forest land at 15,630 square meters (referred to as "the forest land" in this case) at the 10th 6th 7th 7th 7th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 6th 196th 3th 6th 196th 3th 6th 6th 196th 3th 6th 196th 3th 6th 6th 197

2. The provisions of Article 23 (1) of the Income Tax Act, which has been effective at the time of transfer, shall be defined as transfer income, and those of paragraph (2) of the same Article shall be the amount deducting the amount of transfer income from the actual transaction value, and those of paragraph (5) of the same Article, if the actual transaction value is unclear, the transfer value shall be determined based on the current base value at the time of transfer, and those of paragraph (5) of the same Article shall be determined by the Presidential Decree, and those of paragraph (1) of the same Article which are calculated based on the current base value at the time of transfer under paragraph (1) 7 of the same Article, by the end of the month following the date of transfer. Even if there is no difference between the actual transaction value and that of the current base value calculated under paragraph (1) 6 of the same Article, the current base value at the time of transfer shall be determined by the Presidential Decree if there is no difference between the actual transaction value and that of the current base value calculated under paragraph (2) 7 of the same Article.

3. If so, as seen earlier, the judgment of the court below on the premise that in this case where the plaintiff transferred the forest land as seen above, the expected return on the profits accruing from the transfer of the forest land as seen above or the final return on the transfer income concerned (the tax base is nonexistent or there is no deficiencies) should be calculated based on the actual transaction price, the judgment of the court below is erroneous in the misunderstanding of Acts and subordinate statutes concerning the income tax as seen above, and its illegality affected the outcome of the judgment. Therefore, the argument of the lawsuit on this point is well-grounded.

Therefore, the judgment of the court below is reversed and remanded, and it is so decided as per Disposition with the assent of all Justices involved.

Justices Jeong Tae-won (Presiding Justice)