[1] In a case where a sale price is paid to a seller without a land transaction permission for a sale contract within the land transaction permission area under the Act on the Utilization and Management of the National Territory, whether it constitutes a transfer of assets subject to capital gains or an income accrued from the transfer of assets (negative)

[2] The criteria for determining whether the "transfer value by transaction unit" in the notice of the National Tax Service, which is the standard for "acquisition or transfer of real estate by unlawful means, such as preparation of a false contract, false transfer of resident registration, etc." under Article 166 (4) 2 of the former Enforcement Decree of the Income Tax Act, which provides that the transfer value of assets shall be based on the actual transaction value, constitutes "not less than 100 million won"

[3] The subject matter of the taxation revocation lawsuit and the submission time and scope of the data

[1] The transaction contract within the land transaction permission area under the Act on the Utilization and Management of the National Territory takes effect only with the permission of the competent authority, and the effect of the contract takes effect before obtaining the permission as well as the effect of the claim is null and void. Article 4 (3) of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 190) provides that the transfer of assets in the transfer income refers to the actual transfer of the assets at the price of the assets, and it shall not be determined that the transfer income is carried out only by ascertaining the transfer income only in an economic aspect, and it shall not be deemed that the transfer income is carried out with the status of controlling, managing, or taking a part in the profit by ascertaining the transfer income. Thus, even without the land transaction permission, the purchase price has been first paid and the seller takes custody of it, and thus constitutes the transfer of assets

[2] Article 166 (4) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 15191 of Dec. 31, 1996) stipulates cases where real estate is acquired or transferred by unlawful means, such as preparation of a false contract, false transfer of resident registration, etc., in order to avoid tax burden in cases of actual transaction price, which meet the criteria prescribed by the Commissioner of the National Tax Service, and Article 196-16 (Public Notice of February 15, 1996) of the National Tax Service Notice No. 1996-16 (Public Notice of February 15, 1996) provides that "where the transfer price by transaction unit is at least KRW 100 million, the transfer price by transaction unit (based on market price) shall be determined based on the total transfer price of all real estate subject to taxation by each transferor, except in extenuating circumstances.

[3] Whether a disposition of taxation revocation is lawful is determined depending on whether the amount of taxation exceeds a legitimate amount of tax, and the parties concerned may submit arguments and materials supporting the objective amount of tax liability until the closing of arguments in the fact-finding proceedings, and when computing the legitimate amount of tax to be imposed lawfully by such materials, only the portion exceeding the legitimate amount of tax shall be revoked, and the entire amount shall

[1] Article 4 (3) (see current Article 94), Article 27 (see current Article 98) of the former Income Tax Act (Amended by Act No. 4281, Dec. 31, 1990); Article 27 (see current Article 98) / [2] Article 23 (4) 1 (see current Article 96) of the former Income Tax Act (Amended by Act No. 4803, Dec. 2, 1994); Article 166 (4) 2 (see current Article 96 (1) 5) of the former Income Tax Act (Amended by Presidential Decree No. 15191, Dec. 31, 1996); Article 19 of the Administrative Litigation Act / [3] Article 19 of the Administrative Litigation Act

[1] Supreme Court en banc Decision 90Da12243 delivered on December 24, 1991 (Gong1992, 642), Supreme Court Decision 92Nu8361 delivered on January 15, 1993 (Gong1993Sang, 754), Supreme Court en banc Decision 95Nu18383 delivered on March 20, 197 (Gong1997Sang, 105) / [3] Supreme Court Decision 90Nu8459 delivered on April 12, 1991 (Gong191, 1398), Supreme Court Decision 94Nu13527 delivered on April 28, 195 (Gong195, 200), Supreme Court Decision 95Nu297989 delivered on March 29, 197 (Gong29798 delivered on March 29, 197)

Plaintiff (Law Firm Hanman, Attorneys Cha Sung-ho et al., Counsel for the plaintiff-appellant)

Head of Suwon Tax Office

Seoul High Court Decision 97Gu15571 delivered on February 4, 1998

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

We examine the grounds of appeal.

1. The defendant alleged in the ground of appeal of this case that although the part for which permission for land transaction was obtained and the part for which permission was not obtained were not independently concluded or existing, the court below erred in determining the validity of each contract by dividing both parts into two separate contracts, but the court below did not regard it as a separate contract depending on whether to grant permission for land transaction. However, since the court below judged that the part for which transfer income tax may be recognized as a transfer and the part not so, it is clear that the defendant's ground of appeal

2. Article 4 (3) of the former Income Tax Act (amended by Act No. 4281, Dec. 31, 1990) provides that the transaction contract, such as the transaction contract within the area where the land transaction is permitted under the Act on the Utilization and Management of the National Territory, takes effect only with the permission of the competent authority. Before obtaining the permission, the effect of the real right as well as the obligatory effect shall be null and void (see, e.g., Supreme Court Decision 90Da12243, Dec. 24, 1991). Since Article 4 (3) of the former Income Tax Act provides that the transfer of assets refers to the actual transfer of assets at a cost, the transfer of assets refers to the actual transfer of assets at a cost only from an economic aspect, and it shall not be determined that the transfer income is limited to those in a position where the profits are controlled, managed, or enjoying profits by identifying the transfer income. Thus, even without the land transaction permission, it cannot be said that the sale price was paid first and kept by the seller and constitutes transfer of assets subject to capital gains (see Supreme Court Decision 95Nu.

Therefore, in full view of the evidence adopted by the court below, the plaintiff and the non-party 1 and the non-party 3 (hereinafter referred to as the "the plaintiff et al.") sold the land of this case to the non-party 1 corporation Telecommunication Co., Ltd. (hereinafter referred to as the "non-party 1") on May 29, 1989, and the non-party 1 paid the price in full on May 29, 1989. The plaintiff et al. obtained land transaction permission on the part of the land of this case on October 18, 1990, and established a right to collateral security on the whole land of this case on October 19, 190 for the non-party 1. The plaintiff et al. provided the non-party 1 to the non-party 1 corporation with the land transaction permission on November 8, 190 or the land transaction permission on the non-party 3 did not have any error in the misapprehension of legal principles as to the transfer of the land of this case.

3. Article 166(4)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14860, Dec. 30, 1995; Presidential Decree No. 15191, Dec. 31, 1996) provides cases where real estate is acquired or transferred by unlawful means, such as preparation of a false contract, false transfer of resident registration, etc. for the purpose of evading tax burden in cases of actual transaction values, which meet the standard prescribed by the Commissioner of the National Tax Service, and Article 196-16 (Public Notice of February 15, 1996) of the National Tax Service Notice of the National Tax Service (Public Notice of February 15, 1996) provides that "where the transfer value by transaction unit is at least KRW 100,000,000,000,000,000 or more shall be determined based on the total transfer value by transaction unit, except under special circumstances.

Therefore, the judgment of the court below that the transfer value corresponding to the plaintiff's share among the land of this case should be calculated and that the transfer value as stipulated in the notice of the above National Tax Service does not reach "100 million won" is just, and there is no error of law that affected the conclusion of the judgment due to misapprehension of legal principles as to the application of the actual transaction price. The ground of appeal pointing this out is

4. Whether a disposition of taxation revocation is lawful or not is determined depending on whether the amount of taxation exceeds a legitimate amount of tax, and the parties concerned may submit arguments and materials supporting the objective amount of tax liability until the closing of arguments in the fact-finding court, and when computing a legitimate amount of tax to be imposed lawfully by such materials, only the portion exceeding the legitimate amount of tax should be revoked, and the entire amount should not be revoked (see, e.g., Supreme Court Decision 90Nu8459, Apr. 12, 199

However, in this case where the court below determined that the transfer of part of the land of this case cannot be subject to taxation, and that the disposition of this case, which calculated the transfer value by applying the actual transaction price, is unlawful, the court below's judgment and the records of this case can sufficiently confirm the standard market price which serves as the basis for calculating the transfer value of this case. Thus, the court below should have cancelled only the excess after calculating the legitimate transfer value and the tax amount, unless there are other special circumstances. Accordingly, the court below did not consider only the defendant's internal decision amount without adding the amount of the plaintiff's voluntary report paid in the process of determining the notified tax amount to the total amount of transfer income tax, while the court below did not consider only the defendant's internal decision amount without adding it to the total amount of the transfer income tax imposed. The court below's revocation of the disposition of this case's transfer income tax in whole on the ground

In addition, the objective contents of the taxation disposition, such as deeming the total amount of capital gains tax by the rectification disposition issued on May 16, 1996 as KRW 130,135,160, can be different from the objective contents of the taxation disposition, in this case where the defendant's internal decision is not submitted with data on the purport that it may be based on the interpretation of the taxation disposition, as it is externally recognizable, as the objective meaning stated in the tax notice should take effect. Thus, the court below points out that the objective existence and contents of the taxation disposition should be first determined by further review and determination on this point.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jack-dam (Presiding Justice)