Whether a tax authority recognizes it as an speculative transaction without consultation with the Fair Taxation Committee for Capital Gains Tax (negative)

Article 170 (4) 2 of the Enforcement Decree of the Income Tax Act (amended by the National Tax Service Directive No. 980) provides for speculative transactions pursuant to Article 170 (4) 2 of the Enforcement Decree of the Income Tax Act. However, although the form is administrative rules, it has the function to supplement the above Enforcement Decree and the tax authority has the same effect as the legal order. Therefore, it is erroneous for the tax authority to impose capital gains tax by recognizing it as an speculative transaction under Article 72 (3) 8 of the above provision without consultation by the Fair Taxation Committee as an illegal transaction under the above provision

Articles 23(4) and 45(1)1 of the Income Tax Act, Article 170(4)2 of the Enforcement Decree of the Income Tax Act, Article 72(3) of the Regulations on the Management of Property Tax Investigation (National Tax Service Directive No. 980)

Supreme Court Decision 87Nu654 Decided March 22, 1988 87Nu1028 Decided May 10, 198

Plaintiff

Head of Maritime Affairs Office

Busan High Court Decision 88Gu1653 delivered on July 7, 1989

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

According to the facts established by the court below, the defendant issued the tax disposition in this case based on the actual transaction price on the ground that the plaintiff's transfer of the real estate of this case constitutes speculative transactions under Article 72 (3) (the National Tax Service's instructions 980) of the Enforcement Decree of the Income Tax Act (the National Tax Service's notice No. 87-7) and Article 72 (3) 8 of the Enforcement Decree of the Income Tax Act (the "Tax Service's notice No. 87-7"). However, the defendant conducted a tax investigation related to speculative restraint and stated the actual transaction price of the plaintiff's acquisition and transfer of the land of this case, and it did not go through consultation with the Fair Taxation Committee established pursuant to Article 170 (9) of the Enforcement Decree of the same Act and Article 82-2 (1) of the Enforcement Decree of the same Act. The above disposal regulations have the form of administrative rules, but it has the same effect as the above disposal order (the above disposal order should be regarded as an illegal transaction under the above provision of the Income Tax Act.

Therefore, the judgment of the court below to the same purport is just, and the same shall apply to the plaintiff's transaction of this case recognized by the Director of Busan Regional Tax Office as an speculation transaction, or the above Fair Transfer Income Tax Commission as

Therefore, there is no reason to criticize the judgment of the court below from the opposite position.

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 Young-ju (Presiding Justice)