Illegal methods for calculating transfer margin and Scope of cancellation of disposition imposing transfer margin; and

In the calculation method of transfer margin, even if the amount of the recognized tax for taxation exceeds the legitimate tax amount, the excess portion is deemed illegal, and in case where the fact of the occurrence of transfer margin is recognized, the legitimate amount of transfer margin should be examined and the excess portion should be revoked.

Article 23 of the Income Tax Act, Article 1 of the Administrative Litigation Act

[Judgment of the court below]

The director of the tax office.

Seoul High Court Decision 82Gu74 delivered on July 19, 1983

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

The grounds of appeal by the defendant litigant are examined.

According to the reasoning of the judgment below, in calculating the transfer income tax, the court below revoked the entire disposition of this case on the ground that the transfer value and acquisition value are determined based on the actual market price, or are determined based on the same standard market price, and that the transfer value and acquisition value should be determined based on the same standard market price in the case where the actual market price is unclear, and that the transfer value and acquisition value should be determined based on the same standard market price, unless it is determined based on the actual market price and determined based on the actual market price, and that the transfer value was illegal.

However, in this case where there is an error in the calculation basis of capital gains tax, and the difference between the tax amount imposed is disputed, the determination should be made based on whether the tax amount exceeds the new amount. Thus, even if the recognized tax amount of the tax assessment exceeds the legitimate tax amount, the excess portion should be deemed to be illegal, and the entire tax assessment should not be deemed to be unlawful. Therefore, the court below which recognized the fact that capital gains have accrued to the Plaintiff should have revoked only the excess portion after reviewing the reasonable amount of the capital gains tax, as seen earlier, even though the court below revoked the whole tax assessment of this case solely on the ground that the calculation method of the tax base was erroneous, the court below's revocation of the whole tax assessment of this case was erroneous, and there is a reasonable ground for appeal.

Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial. It is so decided as per Disposition by the assent of all participating judges.

Justices Kim Jung-soo (Presiding Justice) and Lee Jong-young's Lee Jong-young