Article 170(1) proviso of the Enforcement Decree of the Income Tax Act

The proviso of Article 170 (1) of the Enforcement Decree of the Income Tax Act is not contrary to the purport of Article 23 (4) and Article 45 (1) of the Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982), and it does not violate the spirit of Article 18 of the Framework Act on National Taxes.

Articles 23(4) and 45(1) of the Income Tax Act (amended by Act No. 3576, Dec. 21, 1982); Article 170(1) proviso of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10977, Dec. 31, 1082); Article 18 of the Framework Act on National Taxes

Supreme Court Decision 85Nu281 Decided July 8, 1986, 84Nu490 Decided July 22, 1986

[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee

Head of the tax office;

Seoul High Court Decision 85Gu389 delivered on November 4, 1985

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal by the Plaintiff’s attorney are examined.

According to Article 170 (1) of the Enforcement Decree of the Income Tax Act, which was amended on December 31, 1982 and enforced on January 1, 1983, the main text provides that both acquisition value and transfer value shall be determined on the basis of the standard market price or on the basis of the actual market price in calculating gains from transfer, and that in case of paragraph (4) 1 and 2, where it is impossible to confirm either the transfer value or the actual market price, it shall be determined on the basis of the standard market price under Article 115 (1) 1 (c) of the Enforcement Decree; the provisions of the proviso of Article 170 (1) of the Enforcement Decree of the Income Tax Act (amended on December 21, 1982) and Article 23 (4) and Article 45 (1) of the Enforcement Decree of the Income Tax Act (amended on December 21, 1982). Accordingly, the court below's decision that the above provision of Article 170 (1) of the Enforcement Decree of the Income Tax Act should not conflict with the purport of Article 188 (1) of the Enforcement Decree of the Income Tax Act, and thus null and void.868.

The theory of lawsuit is that the provisions of the proviso of Article 170(1) of the Enforcement Decree of the Income Tax Act should be deemed null and void on the grounds of the precedents before the amendment of the Income Tax Act and its Enforcement Decree, or it cannot be accepted from its independent opinion. There

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 Dal-sik (Presiding Justice)