The effect of the proviso of Article 170(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10977 of December 31, 1981) is effective.

The proviso of Article 170 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10977 of Dec. 31, 1982) is not only inconsistent with the provisions of Articles 23 (4) and 45 (1) 1 of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982), but also null and void since there are no grounds for delegation under the former Income Tax Act.

Articles 23 and 45 of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982); Article 170 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10977 of Dec. 31, 1982)

Supreme Court Decision 82Nu221 delivered on November 23, 1982, 83Nu738 delivered on March 27, 1984, 83Nu716 delivered on June 12, 1984, 84Nu381 delivered on November 27, 1984

Plaintiff

The director of the tax office.

Seoul High Court Decision 82Gu1022 delivered on September 5, 1983

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal are examined.

The proviso of Article 170 (1) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 10977 of Dec. 31, 1982) does not comply with the provisions of Articles 23 (4) and 45 (1) 1 of the former Income Tax Act, which is the mother corporation, and it is a party member's view that the provisions of the proviso of Article 170 (1) of the former Enforcement Decree of the Income Tax Act are null and void since there is no ground for delegation under the said Income Tax Act (Supreme Court Decision 82Nu21 delivered on Nov. 23, 1982; Supreme Court Decision 83Nu738 delivered on Mar. 27, 1984; Supreme Court Decision 83Nu716 delivered on Jun. 12, 1984; see each Decision 84Nu38

From such view, the court below erred in calculating gains on transfer by evaluating the acquisition value as the price conversion value of the land price index under the proviso of Article 170 (1) of the same Decree in the case of the taxation of this case by the defendant, even though the plaintiff transferred the land at the original time of December 12, 1981 to Samho, and only the acquisition value among the acquisition value and the transfer value cannot be investigated, and the transfer value should be assessed based on the standard market price pursuant to the main sentence of Article 170 (1) of the same Decree. Accordingly, since the transfer gains on transfer should be calculated based on the standard market price, the taxation of this case is legitimate only within the scope of the tax amount calculated by this method, and the part exceeding this limit is not justified, and there is no ground to deny the judgment below from the dissenting opinion.

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

Justices Lee Jong-soo (Presiding Justice)