In calculating gains on transfer of corporate tax special surtax, whether the proviso of Article 170(1) of the Enforcement Decree of the Income Tax Act shall apply mutatis mutandis (negative)

In interpreting and applying Article 59-2 (3) of the Corporate Tax Act and Article 124-2 (6) of the Enforcement Decree of the same Decree, which provides for the method of calculating transfer income of the special surtax, even though the transaction type is similar to those under Article 170 (4) 1 and 2 of the Enforcement Decree of the Income Tax Act, the proviso to Article 170 (1) of the Enforcement Decree of the same Act shall not be applied or applied by analogy under the principle of no taxation without law.

Article 59-2(3) of the Corporate Tax Act, Article 124-2(6) of the Enforcement Decree of the Corporate Tax Act, proviso of Article 170(1) of the Enforcement Decree of

Supreme Court Decision 88Nu1073 Decided May 24, 198

Attorney Go Jae-ho, et al., Counsel for the plaintiff-appellant of a school juristic person

Head of the tax office;

Seoul High Court Decision 87Gu1523 delivered on April 29, 1988

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

Article 59-2 (3) of the Corporate Tax Act, which provides for the calculation method of gains on transfer, which is a tax base of corporate tax special surtax, provides that the transfer value shall be the amount calculated by subtracting the acquisition value, expenses directly disbursed for transfer of land, etc. from the transfer value less the acquisition value, and the acquisition value by the rate and holding period as determined by the Presidential Decree: Provided, That where the transfer value and acquisition value are unclear, the transfer value and acquisition value shall be the amount based on the standard market price at the time of transfer determined by the Presidential Decree and the amount based on the standard market price at the time of acquisition, respectively, as determined by the Presidential Decree. Article 124-2 (6) of the Enforcement Decree of the same Act provides that the above standard market price shall be deemed to be based on the standard market price stipulated by Article 115 of the Enforcement Decree of the Corporate Tax Act and the Enforcement Decree thereof, and Article 170 (4) 1 and 2 of the Corporate Tax Act and Article 170 (1) (proviso) of the Enforcement Decree of the same Act provide for the calculation method of gains on transfer, even if there is no provision applicable mutatis mutandis to the above.

Therefore, in calculating the transfer margin of the corporate tax special surtax, the court below is just in holding that the above two values should be calculated based on the standard market price even in cases where both the transfer value and the acquisition value are unclear as prescribed by the Corporate Tax Act and only one of the two values is unclear, and there is no error of law by misunderstanding the legal principles as pointed out.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)