A. Scope of application of Article 16 of the Addenda of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 1988)

B. Whether applying the same provision to land transfer after the enforcement of the supplementary provision under the preceding paragraph is against the principle of non-payment of tax law (negative)

C. Whether the proviso of Article 170(1) and Article 170(4)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) are the parent law or Article 18 of the Framework Act on National Taxes (negative)

D. Whether to consolidate a claim for return of unjust enrichment against the defendant disposition office in a lawsuit seeking revocation of the disposition imposing tax (negative)

A. The provisions of Article 16 (amended by Act No. 4019 of Dec. 26, 1988) of the Addenda of the former Income Tax Act (amended by Act No. 2705 of Dec. 24, 1974) are not only in calculating the acquisition value of Article 45 (1) of the same Act that is deducted in determining the transfer income amount under the Income Tax Act, but also in calculating the special deduction amount of transfer income under Article 23 (2) of the same Act, but also in calculating the transfer income amount under Article 70 (8) of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 1988).

B. The principle of non-payment in the tax law means not only the purport that the pertinent tax law cannot be applied with respect to the facts that were closed before the entry into force of the relevant tax law, but also the application of new law with respect to the facts that were generated after the amendment or enforcement of Article 16 of the Addenda to the preceding paragraph. If the transfer of the land, which is a taxation requirement, was made after January 1, 1982, it cannot be said that the aforementioned provision does not violate the principle of non-payment in the tax law.

C. The provisions of Articles 23(2) and (4), 45(1)1, and 60 of the Income Tax Act are the provisions that make it possible for the other party to make a decision based on the actual market price if either of the transfer value and the acquisition value is based on the standard market price. Thus, the proviso of Article 170(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) cannot be deemed to be a provision that does not fit with the above provisions of the former Enforcement Decree of the Income Tax Act because it is merely a clear method of calculating transfer margin which is possible to interpret the mother law. In addition, if the other party to a transaction is the State, local government, or other corporation, it cannot be interpreted that the method of calculating transfer margin differently from the transaction with the general company is contrary to the principle of taxation deliberation under Article 18 of the Framework Act on National Taxes. Thus, the provisions of Article 170(1) proviso and (4)1 of the former Enforcement Decree of the Income Tax Act cannot be deemed null and void.

D. In a case where a taxpayer joined a lawsuit against a tax authority for cancellation of a tax disposition, such as the transfer income tax in this case, and files a lawsuit for return of unjust enrichment of the amount which deducts the legitimate amount of tax claimed from his voluntarily paid tax amount, such lawsuit may be deemed to have been filed by combining the litigation for cancellation of a disposition of imposition of transfer income tax in accordance with Article 10(2) of the Administrative Litigation Act, but it cannot be said that the pertinent lawsuit was filed against the disposition authority that issued the instant disposition

A. Article 16(1) of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 1988), Article 70(2) of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 1988). Article 18(3) of the Framework Act on National Taxes, Article 23, 45, and 60 of the Income Tax Act, Article 170(1)4 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989), Article 10 of the Administrative Litigation Act

A. Supreme Court Decision 86Nu485 delivered on November 25, 1986 (Gong1987,116), 87Nu447 delivered on December 22, 1987 (Gong198,358), 88Nu8937 delivered on December 22, 1987 (Gong1990,161) (Gong161), Supreme Court Decision 81Nu305 delivered on December 27, 1983 (Gong1984,338), Supreme Court Decision 84Nu490 delivered on July 22, 1986 (Gong112)

[Defendant-Appellant] Lee In-bok, Counsel for defendant-appellant

Head of the tax office

Seoul High Court Decision 88Gu9796 delivered on April 24, 1989

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. We examine the Plaintiff’s grounds of appeal Nos. 1 and 2.

원심이 확정한 바에 의하면, 원고는 1966.12.1.이 사건 토지를 취득하였다가 1987.7.30. 소외 주식회사 금호에게 양도한 후 위 양도에 따른 자산양도차익예정신고 및 그 수정신고를 하면서 이 사건 토지의 양도가액은 법인과의 거래로서 그 실지거래가액이 확인된다 하여 그 실지거래가액에 의하고, 취득가액은 이를 확인할 수 없는 경우에 해당한다하여 환산가액(기준시가)으로 산출한 다음 그 양도차익에서 양도소득특별공제를 하고, 양도소득세율을 적용하여 양도소득세 금 178,573,086원 동 방위세 금35,774,617원을 자진신고 납부하였는데, 피고는 이 사건 토지의 양도에 따른 소득세를 결정함에 있어 원고의 예정신고 중 그 양도가액 및 취득가액산출은 적법하나 원고가 구 소득세법(1988.12.26. 법률 제4019호로 재정되기 전의 것) 제70조 제8항 에 따라서 양도 소득세율에 의한 산출세액과 종합소득세율에 의한 산출세액 중 많은 쪽을 신고납부하여야 하는데도 종합소득세율에 의한 산출세액보다 적은 쪽인 양도소득세율에 의한 산출세액으로 신고 납부하였다 하여 이를 부인하고 위 토지 양도차익 금 688,375,362원을 과세표준으로 하여 그 금액을(이는 양도소득특별공제액을 공제하지 아니한 금액이다) 보유년수로 나눈 금액에 종합소득세율을 적용하여 계산한 금액에 대하여 보유년수를 곱한 금액(즉 종합소득세율에의한 세액)인 금 244,159,422원을 납부세액으로 산출하고 여기서 예정신고납부세액 공제금19,841,454원과 예정신고자진납부세액 금 178,573,086원을 차감한 잔액으로 양도소득세 금 45,744,880원, 동 방위세 금 9,148,970원을 각 부과결정하여 원고에게 고지한 사실을 알 수 있다.

The issue is that "any land or building acquired before December 31, 1974, among the assets provided for in Article 23 of the former Income Tax Act (amended by Act No. 2705 of Dec. 24, 1974) (amended by Act No. 4019 of Dec. 26, 198), which was acquired before December 31, 1974, is applicable only to the agenda of the acquisition time, and it is not applicable to the calculation of the number of years held based on the calculation of the capital gains tax. However, this provision is just in calculating the acquisition value of Article 45 (1) of the Income Tax Act, which is deducted in determining the capital gains tax under the Income Tax Act, as well as in calculating the amount of special deduction under Article 23 (2) of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 198); and it is also applicable to the calculation of the amount of capital gains tax under Article 70 (8) of the former Income Tax Act (amended by Act No. 4019 of Dec. 26, 19887. 1987. 1988.

In addition, although Article 16 of the above Addenda also violates the principle of non-payment of law, the principle of non-payment of tax law does not apply to the pertinent tax-related facts that are closed prior to the entry into force of the pertinent tax-related Acts and subordinate statutes, and the application of new Acts and subordinate statutes on the tax-related facts that have been continued (see, e.g., Supreme Court Decision 81Nu305, Dec. 27, 1983) and Article 16 of the above Addenda was amended and enforced after January 1, 1982, in this case where the transfer of the pertinent land, which is a taxation-related fact, is made after the amendment of Article 16 of the above Addenda, does not violate the principle of non-payment of tax-related Acts and subordinate statutes. Accordingly, each of the above arguments is groundless.

Meanwhile, Article 70(8) of the former Income Tax Act (amended by Act No. 4019, Dec. 28, 198) provides that “If the tax base of transfer income under paragraph (3) is less than the amount calculated by dividing the tax base of transfer income by the number of years held (if the amount of special deduction of transfer income is not deducted, it shall be the amount calculated by applying the tax rate under paragraph (1) by the number of years held (hereinafter “tax amount based on the global income tax rate”), the tax amount based on the global income tax rate shall be the tax amount subject to the global income tax rate.” In addition, the argument that when calculating the tax amount based on the global income tax rate, the special deduction of transfer income should be made from the global income tax base is contrary to the above clear provision, and thus, it cannot be accepted as contrary to Article 23(2) and (4), Article 45(1)1, and Article 60 of the Income Tax Act (see Article 80 of the former Income Tax Act) which provides that if the transfer value and acquisition value are calculated based on assets, it can only be interpreted as one of the standard market value prior to be interpreted.

Therefore, the judgment below to the same purport is just and contrary to its opinion, and there is no ground to argue that the provisions of Article 170 (1) and (4) 1 of the Enforcement Decree of the Income Tax Act are invalid against Article 18 of the Framework Act on National Taxes

2. We examine the Plaintiff’s ground of appeal No. 3

According to the records, the plaintiff can be found to have filed a lawsuit claiming return of unjust enrichment in 189,884,214, which deducts 24,403,447 won, which is the legitimate amount of tax claimed by the plaintiff from the tax authority's 214,287,690 won after combining the revocation lawsuit against the defendant who is the tax authority. This can be deemed to have filed a lawsuit claiming return of unjust enrichment in accordance with Article 10 (2) of the Administrative Litigation Act, while the plaintiff can not file a lawsuit claiming payment of unjust enrichment against the disposition authority which issued the disposition of this case. Thus, the judgment of the court below in the same purport is correct, and there is no error of law by misapprehending the legal principles as to the consolidation of related claims, such as the theory of lawsuit.

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Chang-chul (Presiding Justice)