Whether the provision of Article 6 (3) of the Enforcement Decree of the Enforcement Decree of the former Business Tax Act (Presidential Decree No. 8409 of Dec. 31, 1976) prescribing the transitional measures for the period of realization of the profit under Article 23 of the same Act due to the abolition of the former Business Tax Act is valid

Article 23 of the former Business Tax Act (amended by Act No. 2318, Nov. 28, 1971; repealed by Act No. 2318, Jul. 1, 1977) provides that the period of realizing profits under Article 23 of the former Business Tax Act falls under a taxation requirement that specifically determines the period of realizing the obligation to pay business taxes, and thus, it shall be determined as a principle at the request of the no taxation without law without law and shall not be governed by the Presidential Decree, etc., unless there are grounds to delegation by the law. Thus, there is no ground to view that the person delegated the matters concerning the period of realizing profits under the Value-Added Tax Act to the enforcement of the Enforcement Decree of the same Act. Thus, if the period of realizing profits under Article 23 of the former Business Tax Act arrives before the enforcement of the Act without any ground to delegate the parent law under Article 6 (3) of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 8409, Dec. 31, 1976).

Article 23 of the former Business Tax Act (amended by Act No. 1965 of Nov. 29, 1967 and repealed on July 1, 197), Article 6 (3) of the Addenda to the Enforcement Decree of the Value-Added Tax Act (Presidential Decree No. 8409 of Dec. 31, 1976)

Jscat and Attorney Suh-ro, Counsel for the defendant-appellant

The director of the tax office

Seoul High Court Decision 82Gu536 delivered on November 27, 1984

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

Article 21(1) of the former Business Tax Act (Abolition at the same time as the enforcement of the Value-Added Tax Act) provides that the amount which serves as the tax base for business taxes shall be based on the total amount of revenue for each taxable period prescribed in Article 4, and Article 23(3)2 of the former Business Tax Act provides that the date of annual payment shall be the date of profit realization belonging to the taxable period of the business tax in case where sales, construction or provision of services is made or received under the conditions of annual payment. However, as the Value-Added Tax Act enters into force on July 1, 197 as of July 1, 197, Article 3(1) of the Value-Added Tax Act is a transitional measure, and Article 3(1) of the Enforcement Decree of the same Act provides that the transitional measure shall be imposed or to be imposed under the former tax Act at the time when this Act enters into force.

On the other hand, since the period of realizing profits under Article 23 of the former Business Tax Act falls under the taxation requirement that specifically establishes the period of realizing profits under the business tax liability, it is not possible to regulate it as a matter of principle according to the request of no taxation without law, and as an administrative legislation such as Presidential Decree, unless there is any ground to delegate it to the former Enforcement Decree, even after examining the Value-Added Tax Act, there is no ground to view that Article 6 (3) of the Enforcement Decree of the Value-Added Tax Act delegated the matters concerning the period of realizing profits to the former Enforcement Decree. Thus, if Article 6 (3) of the Enforcement Decree of the Value-Added Tax Act enters into force before the enforcement of the Act without any ground to delegate it to the Value-Added Tax Act, but the period of realizing profits under Article 23 of the former Business Tax Act comes due to the date preceding the enforcement date of the Act, it cannot be said that Article 6 (3) of the former Enforcement Decree of the Value-Added Tax Act provides that the period of realizing profits can not come into force.

If so, the judgment of the court below to the same purport is just, and it is not unlawful for the defendant to include the principal and interest of loans in the tax base of the above taxable period under Article 6 (3) of the Enforcement Decree of the Enforcement Decree of the Act on the Settlement of Interest and Interest of Loans, which have not yet been due on June 30, 1977, in the imposition of the business income of the plaintiff in the taxable period from April 1, 197 to June 30, 1981. There is no error of law by misunderstanding the legal principles of the Value-Added Tax Act, such as the theory of lawsuit. The argument is without merit.

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 Yong-chul (Presiding Justice)