A. Whether the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10120, Dec. 31, 1980) proviso of Article 170(1) of the former Income Tax Act (amended by Presidential Decree No. 10120, Dec. 31, 1980) violates Article 23(4) and Article 4

B. Whether Article 203 of the former Income Tax Act (amended by Act No. 3271 of Dec. 13, 1980) delegated the enactment of a law on taxation requirements to the Presidential Decree (negative)

C. The meaning of the no taxation without law

A. The purpose of the proviso of Article 170 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10120, Dec. 31, 1980) is to: (a) where the actual transaction price is calculated based on the actual transaction price pursuant to Article 170 (3) of the same Act, the transfer price and acquisition price are determined based on the standard market price at the time of transfer or acquisition; (b) where the actual transaction price is confirmed, but where another actual transaction price is not confirmed pursuant to Article 170 (3) of the same Act; or (c) where the actual transaction price is not confirmed, the conversion price calculated according to the conversion method determined by the Commissioner of the National Tax Service; or (c) Article 23 (4) and Article 45 (1) 1 of the former Income Tax Act (amended by Presidential Decree No. 3271, Dec. 13, 1980) of the same Enforcement Decree provides that the transfer price and acquisition price are determined based on the actual transaction price at the time of assets, and thus it cannot be deemed null and void.

B. According to Article 203 of the former Income Tax Act (amended by Act No. 3271 of Dec. 13, 1980), “matters necessary for enforcement of this Act shall be prescribed by the Presidential Decree.” However, this is merely a provision that the enforcement order necessary for enforcement of this Act may be issued, and it cannot be deemed as a provision that comprehensively delegates to the Presidential Decree even the enactment of the laws and regulations on taxation requirements such as transfer margin.

C. The principle of no taxation without the law is a law enacted by the National Assembly, which is a representative period of the people, and it shall be strictly interpreted and applied in the enforcement of the law, and the expanded interpretation or analogical application of the administrative convenience is not allowed. Therefore, it is against the principle of no taxation without the law to stipulate matters concerning tax requirements and procedures for imposition and collection, or to provide an interpretation provision that without the delegation of the law by administrative legislation, such as an order or rule, or by analogys and expands the contents of the law.

A. Article 170(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10120 of Dec. 31, 1980); Articles 23(4) and 45(1)1(b) of the former Income Tax Act (amended by Presidential Decree No. 3271 of Dec. 13, 1980)

Plaintiff 1 and one other

Head of Dongmasan Tax Office

Daegu High Court Decision 81Gu144 delivered on March 23, 1982

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

We examine the plaintiffs' grounds of appeal.

1. According to the reasoning of the judgment below, the court below determined that the plaintiff et al. acquired the land of this case jointly on July 17, 1973 and calculated the transfer value and acquisition value to the non-party on October 23, 1980 based on the standard market price, and then the defendant confirmed that the actual transfer value of the land of this case is KRW 110,00,000,000, the transfer value of each share of the plaintiff et al. was based on the above actual transaction value, and calculated transfer income tax and defense tax based on the converted value based on the above transfer value pursuant to the proviso of Article 170 (1) and (3) of the former Enforcement Decree of the Income Tax Act at the time of enforcement of the acquisition value, and determined the fact that the tax amount deducted from the above voluntary payment was additionally imposed, and rejected the plaintiffs' assertion that Article 170 (1) (proviso) of the former Enforcement Decree of the Income Tax Act

2. Therefore, in determining transfer margin under Article 23(2) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10120, Dec. 31, 1980) and Article 170(1) of the former Enforcement Decree of the Income Tax Act, if the Commissioner of the National Tax Service determines one of the transfer value or acquisition value based on the actual transaction price, the other one shall be determined based on the actual transaction price, and if either one is determined based on the standard market price, the other one shall be determined based on the standard market price. However, where calculating transfer margin pursuant to the provisions of paragraph (3) of the same Article, if it is impossible to investigate one of the transfer value or acquisition value based on the actual transaction price, the transfer price or acquisition value converted by the method as determined by the Ordinance of the Ministry of Finance and Economy shall be deemed as the actual transaction price at the time of transfer or acquisition. However, the purpose of the proviso to Article 170(1) of the former Enforcement Decree of the Income Tax Act is to determine the actual transaction price converted by one of the actual transaction price.

However, according to Articles 23(4) and 45(1)1 of the former Income Tax Act (amended by Act No. 3271 of Dec. 13, 1980), a parent corporation of the former Enforcement Decree of the Income Tax Act (amended by Act No. 3271 of Dec. 13, 1980), the transfer price and acquisition price are based on the actual transaction price and, if the actual transaction price is unclear, based on the standard market price at the time of transfer or acquisition. Thus, the term "actual transaction price"

Therefore, it is not consistent with the provisions of the former Income Tax Act for the mother corporation, and there is no ground to delegate the concept of the actual transaction value under the former Income Tax Act to the Enforcement Decree so that the concept of the actual transaction value can be expanded and defined like the above proviso.

However, Article 203 of the former Income Tax Act provides that "the matters necessary for the enforcement of this Act shall be prescribed by Presidential Decree", but it is only a provision that the enforcement order necessary for the enforcement of the Act may be issued, and it cannot be deemed that the delegation provision comprehensively delegated to Presidential Decree is not a provision that comprehensively delegates to the enactment of the Acts and subordinate statutes on taxation requirements such

3. The former Constitution and the current Constitution stipulate that all citizens shall be liable to pay taxes as prescribed by Act (Article 33 of the former Constitution, Article 36 of the Constitution), and the items and rates of taxes shall be determined by Act (Article 94 of the former Constitution, Article 95 of the Constitution). Such principle of no taxation without law refers to a law enacted by the National Assembly, which is a representative organ of the people, to provide for tax requirements and procedures of no taxation without law, and a strict interpretation and application should be made in the enforcement of the law, and administrative convenience expansion or analogical application should not be allowed.

Therefore, it cannot be said that the administrative legislation, such as an order or rule, without the delegation of the law, provides for matters concerning tax requirements and procedures for imposition and collection, or without permission for the provision of an interpretation provision that expands and expands the contents provided in the law violates the principle of no taxation without the law.

From this point of view, the proviso of Article 170 (1) of the former Enforcement Decree of the Income Tax Act concerning the transfer margin, which is a taxation requirement of the transfer income tax, does not coincide with the provisions of the former Income Tax Act as the parent corporation, and also expands the taxation requirement of the parent law without any basis for delegation under the former Income Tax Act, and thus, it cannot be

4. Thus, the judgment of the court below on the premise that the proviso of Article 170 (1) of the former Enforcement Decree of the Income Tax Act is valid is an unlawful act that affected the conclusion of the judgment by erroneous interpretation of the above Income Tax Act and its Enforcement Decree. Thus, the judgment below is reversed and the case is remanded to the Daegu High Court. It is so decided as per Disposition by the assent of all participating judges.

Justices Park So-young (Presiding Justice) Lee So-young (Presiding Justice) Lee So-young, Kim So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young, Lee So-young