In the case of a blanket sale and purchase of a large-unit orchard without specifying the value of each of the lands, overground water and buildings and other structures, respectively, as a whole:

A. Whether income from the transfer of the above fruit trees is subject to the imposition of capital gains tax (negative)

(b) Methods of calculating gains on transfer of land;

A. There is no provision that the transfer price of the land is subject to total taxation by referring to the value of the land and its ground subject, or that the transfer price of the land is subject to transfer income tax under Article 23 subparag. 2 and subparag. 3 of the Income Tax Act, and there is no provision that the transfer price of the land is subject to transfer income tax under Article 23 subparag. 2 and subparag. 3 of the Income Tax Act, and the price of the land differs depending on its variety, life period, growth situation and profitability, which is separate from the land, and the transaction is subject to separate transaction from the land, and there is a case where the price of the land is assessed higher than the price of the land. Therefore, without any basis to recognize it as subject to taxation under the principle of no taxation without any justifiable ground, it is not subject to taxation, and thus,

B. In a case where a large-scale orchard is traded collectively without specifying the price of the land, the fruit of the land, the buildings and other structures, it is reasonable to interpret that the actual transaction price of the land falls under a case where it is unclear. Therefore, regardless of the actual acquisition price, the calculation of gains on transfer shall be based on the current market price at the time of transfer and acquisition.

(a) Article 23(1) of the Income Tax Act; Article 44 of the Enforcement Decree of the Income Tax Act; Article 23(4) of the former Income Tax Act (amended by Act No. 1316, Aug. 14, 1979); Article 170(3) of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 1979, Dec. 31,

[Judgment of the court below]

Head of Eastern Tax Office

Seoul High Court Decision 83Gu301 delivered on July 18, 1984

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal by the defendant litigant are examined.

1. Where a large-scale unit of orchard is traded collectively without distinguishing the value of the land, fruit trees, and buildings and other structures from each other, it cannot be viewed as the basis for interpreting that the value of the land, except for the above building, should be calculated in proportion to the value calculated according to the standard market price at the time of transfer pursuant to Article 170(2) of the Enforcement Decree of the Income Tax Act without deducting the value of the land, and the land and fixtures are not included in the real estate under Article 99(1) of the Civil Act, but it cannot be viewed as the real estate included in the subject of taxation under the Income Tax Act because the value of the land is included in the concept of the above land and the sale price of the land is included in the concept of the above subject of taxation, and it cannot be viewed as the real estate included in the calculation of profits from the sale of the land and the above subject of taxation under Article 23(1)1 and 2 of the Enforcement Decree of the Income Tax Act, and even if the sale price of the land is included in the concept of the land and the sale price of the land.

Therefore, it is reasonable to interpret that a comprehensive sale without specifying the price as above constitutes a case where the actual transfer price of the land is unclear. Thus, regardless of the actual acquisition price, the calculation of transfer margin shall be based on the standard market price at the time of transfer and acquisition under the provisions of Articles 23(4), 170(3) (Enforcement Decree of the Income Tax Act and the Enforcement Decree of the Income Tax Act) of the same Enforcement Decree. In the purport that the price of the subject of this case and the price of the land are not differentiated, the court below's decision that the total of the actual transfer price of the land is illegal for taxation based on the price of the land and the standard price of the land is not clear for the reasons as stated in its reasoning. Thus, the decision of the court below is just and correct without the need to

2. The court below recognized that the transfer of a house 2, 37, and 50, and 87, which was located on the ground of this orchard together with the transfer of a house in this orchard, and held that the tax amount related to the transfer of the building was unlawful even though the report was omitted. According to the records, the court below determined the transfer margin based on the transfer price of the land at the transfer price of the land, and calculated the tax amount based on this determination. The court below acknowledged that the transfer margin was calculated based on the total amount of the standard market price at the time of the transfer and the transfer price at the time of the above 30 parcels of land, and calculated the transfer margin and the defense tax amount based on this basis, and it cannot be found that the defendant imposed the transfer income tax on the building. Thus, the tax amount following the transfer of the building can be imposed again by the defendant, and it cannot be deemed that the transfer tax amount of the building was cancelled by cancelling the part exceeding the transfer tax amount calculated on the land in this case's holding.

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

Justices Jeong Jong-tae (Presiding Justice)