In a case where the amount calculated under the proviso of Article 9 of the Addenda to the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12564 of Dec. 31, 198) is the acquisition price for the assets acquired prior to the date of fictitious acquisition under Article 9 of the Addenda to the former Enforcement Decree of the Income Tax Act, whether the acquisition price constitutes the actual transaction price under Article 170 (1) of the Enforcement Decree of the above Act (amended by the Presidential Decree No. 12767

In case where assets are acquired and transferred prior to the date of fictitious acquisition under Article 9 of the Addenda of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12564 of Dec. 31, 1988), if the actual acquisition price is confirmed, and the amount calculated under the proviso of Article 9 of the Addenda as of the actual acquisition price is higher than the price stipulated in the main sentence of the same Article, the acquisition price shall be deemed to fall under the actual transaction price under Article 170 (1) of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 12767 of Aug. 1, 1989).

Article 23 (2) of the Income Tax Act; proviso of Article 9 of the Addenda to the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12564 of Dec. 31, 1988); Enforcement Decree of the same Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) Article 170 (1) of the same Act

[Judgment of the court below]

Head of Seocho Tax Office

Seoul High Court Decision 89Gu12300 delivered on June 27, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal by the defendant litigant are examined.

Article 170 (1) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 12767 of Aug. 1, 1989) provides for the following: (a) In the case of Article 23 (2) of the Act, if one of the transfer values or acquisition values is determined based on the actual transaction price, the other shall be determined based on the actual transaction price: Provided, That in the case of paragraph (4) 1 and 2, if it is impossible to confirm any of the transfer values or acquisition values, it shall be determined based on the actual transaction price and it shall be determined based on the standard market price under Article 115 (1) 1 (c) of the Enforcement Decree; (b) Article 170 (4) 1 of the former Enforcement Decree provides that the acquisition price of assets shall be determined based on the actual transaction price; (c) in the case of Article 170 (1) of the former Enforcement Decree, if the acquisition price is determined based on the actual transaction price, the acquisition price of assets shall be determined based on 17 months or less than 197 months.

On the above premise, the court below determined that the transfer value of the land of this case was unlawful after calculating the transfer value at the time of transfer by the conversion method under Article 4,538,576 of the Enforcement Decree of Seoul on February 14, 1971 and calculating the transfer value on June 29, 198, and the transfer value was not confirmed, and there is no error in the misapprehension of legal principles as to the interpretation of Article 9 of the Addenda of the Enforcement Decree of the above case, as alleged in its reasoning, where the proviso of Article 9 of the Addenda of the above Enforcement Decree is applied as real acquisition value, on the basis of the aggregate amount under the proviso of Article 170 (1), Article 170 (4) 1 and Article 115 (1) 1 (c) of the Enforcement Decree of the above Act and Article 56-5 and (5) 2 of the former Enforcement Decree of the Income Tax Act (amended by the Ordinance of the Ministry of Finance and Economy No. 183 of September 1, 1990).

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 Song Man-man (Presiding Justice)