(a) Where there exists no preliminary return on gains from transfer of assets or the final return of tax base, the propriety of calculating gains from transfer;

B. Whether the transfer value and acquisition value of real estate should be determined by the same calculation method in calculating transfer income tax

A. In full view of the provisions of Articles 23(5), 45(1), and 170(3), and 170(4) of the former Income Tax Act (amended by Act No. 3015, Dec. 19, 197), the transfer value and acquisition value in calculating transfer income for the imposition of transfer income tax shall be based on the actual transaction value, in principle, or in calculating transfer income, the transfer value and acquisition value are not based on the actual transaction value, and thus, in a case where the actual transaction value is unclear, transfer gains should be calculated based on the current market value.

(b) In calculating the transfer income tax, the transfer value and acquisition value of real estate shall be calculated on the basis of the same actual transaction value, regardless of or equal statutory standard price.

Articles 23(5) and 45(1) of the former Income Tax Act (Amended by Act No. 3015, Dec. 19, 197);

A. Supreme Court Decision 77Nu222 delivered on December 27, 197

Supreme Court Decision 79Nu329 delivered on February 26, 1980

Supreme Court Decision 79Nu394 delivered on March 11, 1980

B. 80Nu95 decided July 8, 1980

Plaintiff

Kim head of the tax office

Gwangju High Court Decision 80Gu72 delivered on October 27, 1981

Supreme Court Decision 80Nu165 Delivered on November 11, 1980

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal by the defendant litigant are examined.

The court below held that the defendant's disposition imposing capital gains tax and defense tax on the non-party who sold the real estate to the plaintiff after dividing it for the first time is unlawful on the ground that in this case where the plaintiff did not make a preliminary or final return on the gains from the transfer of assets or the tax base of the real estate in calculating the tax amount, the disposal of the real estate in this case is the same as the date of original adjudication, and it is obvious that the disposal of the real estate in this case is identical to the date of original adjudication, since the real estate in this case is regarded as the date of transfer as the date of transfer and the actual transaction price of the land in this case, and the amount assessed as the market price at the time of the same day as the transfer price at the market price at the time of the same day is regarded as the transfer price at the transfer price, and the transfer price at this case is regarded as the date of February 197 under Article 27 of the same Act as the actual transaction price at 5,990,000 won, which is the actual transaction price at the end of February 2, 1997.

In light of the provisions of Articles 23 (5), 45 (1), and 170 (3) and (4) of the Enforcement Decree of the Income Tax Act (amended by Act No. 3015, Dec. 19, 197) which was enforced at the end of February 197, which was lawfully recognized by the court below as the date of transfer of real estate, the transfer price and acquisition price in calculating transfer income tax for the imposition of transfer income tax shall be based on the actual transaction price, but if the actual transaction price is unclear, the transfer price and acquisition price in calculating transfer income tax shall be calculated based on the standard market price, and it shall be calculated based on the actual transaction price calculated at the time of the original return and the actual transaction price in accordance with Article 95 of the Act or Article 170 (4) of the Enforcement Decree of the same Act, which is the standard market price, and thus, it is difficult for the court below to calculate the transfer price of real estate at the time of the original return (see, e.g., Supreme Court Decision 27Nu297,198.

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

Justices Kang Jong-young (Presiding Justice)