Even if the disposition imposing real estate speculation control tax by the head of a tax office violates the legal procedure, the court below should further determine whether there is a substantial difference between the actual gains from the transfer of land and the marginal profits from the transfer of land among the two parties, and thereby determine the illegality of the above disposition of taxation by the defendant. However, the court below revoked the defendant's disposition of imposing the gains from the transfer of land on the ground that the defendant's disposition imposing the gains from the transfer of land without comparing the actual gains from the transfer of land with the gains from the transfer of land on the basis of the taxation standard is unlawful, and the lack of reason is

[Judgment of the court below]

The head of Eastern Tax Office

Seoul High Court Decision 72Gu205 delivered on May 22, 1973

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

The grounds of appeal by the defendant litigant are examined.

The lower court determined that the Defendant’s revocation of the disposition imposing a real estate speculation control tax on the Plaintiff based on the summary of its reasoning, and that the Defendant did not investigate the actual transfer marginal profit without any report on the transfer of the land from the Plaintiff on the ground that there was no application for taxation based on the actual transfer marginal profit, and thus, it erred in imposing the land transfer marginal profit and the actual transfer marginal profit as the tax base without comparing the legal difference between the transfer marginal profit and the actual transfer marginal profit, and thus, it is not necessary to determine the remainder of the Plaintiff’s

However, even if the defendant's disposition of imposing the speculative margin tax as above violates the legal procedure, the court below should investigate the actual gains from the transfer of land and the gains from the transfer of land bilaterally and determine whether there is a substantial difference between the two, and thereby, the court below should determine whether the defendant's disposition of imposing the tax in question is unlawful. However, the defendant's disposition of imposing the gains from the transfer of land without comparing the actual gains from the transfer of land with the gains from the transfer of land as the tax base is not erroneous for lack of sufficient reasons. Thus, the court below's decision to revoke the defendant's disposition of imposing the gains from the transfer of land on the ground that the defendant's disposition

Therefore, by the assent of all participating Justices, the original judgment is reversed, and the case is remanded to the Seoul High Court. It is so decided as per Disposition.

Justices Red Man-Man (Presiding Justice)