In cases of failure to file a preliminary return on transfer margin or a final return on tax base, the criteria for calculating transfer margin.

Articles 23 (4) and 45 (1) 1 of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990) and Article 170 (4) 3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13194 of Dec. 31, 1990) declare that in the case of transfer of assets, in principle, the standard market value was converted from the existing actual transaction value in calculating transfer margin. Thus, in the case of transfer of assets, if assets are transferred without any preliminary return or final return of transfer margin of assets or no evidentiary document is submitted, even if actual transaction value is confirmed, the transfer margin shall be calculated based on the standard market price, and it shall not be based on the actual transaction

Articles 23(4) and 45(1)1 of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990), Article 170(4)3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13194 of Dec. 31, 1990)

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Dong-young and 1 other, Counsel for plaintiff-appellant-appellant-appellant-appellant-appellant-appellant-appellant-Appellee-Appellee-Appellee-Appellant-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-

Plaintiff

Director of the tax office

Seoul High Court Decision 93Gu663 delivered on July 20, 1993

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Articles 23(4) and 45(1)1 of the Income Tax Act (amended by Presidential Decree No. 4281 of Dec. 31, 1990) and Article 170(4)3 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13194 of Dec. 31, 1990) declares that in the case of transfer of assets, the transfer margin was converted from the existing actual transaction value principle to the standard market price principle in calculating the transfer margin. Thus, in the case of transfer of assets, if assets are transferred without any preliminary return of transfer margin or final return of transfer margin, or there is no evidentiary document proving the actual transaction value, the transfer margin shall be calculated based on the standard market price even if the actual transaction value is confirmed (see Supreme Court Decision 92Nu18498 of Mar. 23, 1993).

In the same purport, the judgment of the court below that the tax assessment in this case, which calculated the transfer margin by the standard market price, is justifiable, is justified, since the plaintiff did not make a preliminary return or final return on transfer margin by the transfer of land in this case, and there is no violation of the principle of substantial taxation

According to the proviso of Article 23(4) and the proviso of Article 45(1)1 of the Income Tax Act and Article 170(4)2(c) of the Enforcement Decree of the same Act, even if real estate is transferred within one year after its acquisition, where it is deemed that there is no speculation in light of the circumstances of acquisition, utilization, etc. of the real estate, it may be excluded from the application of the actual transaction price through consultation under Article 170(9) of the Enforcement Decree of the same Act. The records show that the land transaction of this case by the plaintiff is not speculative in light of the circumstances of transfer, etc., and that it was excluded from the application of the actual transaction price through consultation procedure under the above Acts and subordinate statutes. Thus, since the transfer of the land of this case was conducted within one year after its acquisition, there is no reason to argue that transfer margin should be calculated based on the actual transaction price, or that there

In addition, it cannot be deemed that the method of determining the standard market price with respect to the area where the real estate price rapidly increases or is expected to increase or a different area is a specific area, and it does not go against the principle of fair taxation (see, e.g., Supreme Court Decision 90Nu9629, Jul. 26, 1991). Thus, the argument that the judgment of the court below is unlawful in violation of the rules of evidence cannot be accepted in the judgment of the court below on the premise that other opinions criticize the judgment of the court below based

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

Justices Jeong Jong-ho (Presiding Justice)