Whether it is unconstitutional that the development charges are not deducted as necessary expenses.

In calculating the gains on transfer based on the standard market price, since the development charges are not deducted from necessary expenses, if unfavorable to a taxpayer, a taxpayer is entitled to receive the gains on transfer based on the actual transaction price more favorable than a taxpayer, and thus, it does not violate the principle of no taxation without law, etc.

The contents of the decision shall be the same as attached.

In calculating the transfer margin based on the standard market price, whether the development charges are illegal to not deduct the development charges as necessary expenses (negative)

According to Article 94(2)4 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) and Article 47(1)1 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505 of May 3, 1995), in cases of calculating gains on transfer based on the actual transaction value, development charges shall be deducted from necessary expenses. Thus, in calculating gains on transfer based on the standard market price, if the development charges are not deducted from necessary expenses, and if the taxpayer is disadvantageous to the taxpayer by reporting gains on transfer based on the actual transaction price more favorable than the necessary expenses, it is difficult to say that the calculation of gains on transfer based on the standard market price goes against the principle of no taxation without the law, the principle of substantial taxation, the principle of fair burden, the principle of prohibition of abuse of rights, the principle of property rights guarantee, and the principle of excessive prohibition.

Article 59 of the Constitution, Article 14(2) of the Framework Act on National Taxes, Articles 7(2) and 45(1) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994); Article 94(2)4 and (5) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467, Dec. 31, 1994); Article 47(1)1 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 505, May 3, 1995)

1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.

1. Details of the instant disposition

다음 사실은 당사자 사이에 다툼이 없거나 갑 제1호증의 1, 갑 제3호증〜제8호증, 을 제1호증의 1, 2, 을 제2호증의 각 기재에 의하면 인정된다.

A. On March 27, 1978, the Plaintiff acquired shares in each forest area of 4,760 square meters and 44-10,000 square meters in 0,000 00 00 00 00 00 00 00 00 00 000 135,000 1500 15,0000 4,760 m200 and 15,000 444 m24,000 15,0000,000 13,000 m25,0000 13,000 m26,000 13,000 m25 m21,000,000 for 136 m2,000 m25,000 m261,00 m25,000 m25,00

나. 그런데 위 각 토지 중 1131의 55, 56, 58〜61 토지(이하 이 사건 토지)가 1994. 6. 28. ○○시에 수용되어 원고 지분에 대한 보상금 합계 금 1,807,185,000원이 원고에게 지급되었다. 그러자 원고는 1994. 7. 30. 이 사건 토지의 수용에 따른 양도차익을 기준시가에 의하여 산정하여 양도차익예정신고를 하면서 금 283,438,890원을 자진납부하였는데 당시 원고는 양도가액을 금 870,948,752원으로 신고하였고 개발부담금은 필요경비로 신고하지 않았다. 그 뒤 원고는 1994. 9. 14. 위 개발부담금 중 이 사건 토지에 관한 원고의 분담액이 금 121,886,339원인데 이를 필요경비로서 양도가액에서 공제하여 수정신고를 하였다.

C. However, the Defendant did not recognize the development charges as necessary expenses, and recognized only the amount calculated by adding 7% of the tax base price to the standard market price at the time of acquisition as necessary expenses, and calculated gains on transfer based on the standard market price, and decided to refund the amount of KRW 87,414,240, which was calculated by deducting the amount of KRW 196,024,644 from the amount voluntarily paid by the Plaintiff, to the Plaintiff on October 31, 1995.

2. Whether the instant disposition is lawful

A. Details of the relevant statutes

Article 45 (1) of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same) provides for one of the necessary expenses to be deducted from the transfer value in calculating transfer margin, the facility cost and improvement cost prescribed by the Presidential Decree under subparagraph 2, and the capital expenditure prescribed by the Presidential Decree under subparagraph 3.

However, Article 94(5) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1467, Dec. 31, 1994; hereinafter the same) provides that where calculating gains on transfer of real estate according to the standard market price, only the amount calculated by adding 7% of the standard market price at the time of the acquisition, and the amount calculated by adding 7% of the standard market price at the

B. Summary of the parties' arguments

The Defendant asserts that the instant disposition is lawful on the grounds of the above disposition grounds and relevant statutes. Accordingly, the Plaintiff asserts that Article 94(5) of the Enforcement Decree is inconsistent with Article 45(1) of the Act of the parent corporation, and that development charges are imposed on the same nature as capital gains tax, and thus, it is invalid as it violates the principle of no taxation without law, the principle of substantial taxation, the principle of fair burden, the principle of prohibition of abuse of rights, the principle of prohibition of abuse of rights, the principle of property right guarantee, and the principle of excessive prohibition, and therefore, the instant disposition

C. Determination

Article 45(1)2 and 3 of the Act provides that the cost of installation, improvement, and capital expenditure prescribed by the Presidential Decree shall be deducted from the necessary expenses. Therefore, the Enforcement Decree does not stipulate that only part of the cost of installation, improvement, and capital expenditure shall be deducted from the necessary expenses or shall not be subject to the actual cost and shall not be deemed delegation by the mother Act. In addition, in cases of calculating gains on transfer based on the actual transaction value, the development charges shall be deducted from the necessary expenses (Article 94(2)4 of the Enforcement Decree and Article 94(1)1 of the Enforcement Rule). In addition, in cases of calculating gains on transfer based on the standard market price, if the development charges are calculated based on the standard market price without deducting the development charges from the necessary expenses and thereby disadvantageous to taxpayers, the taxpayers shall be entitled to the deduction of gains on transfer from the standard market price by reporting the gains on transfer more favorable to the necessary expenses. However, in light of the principle of no taxation without the principle of no taxation without the law, the principle of fair burden, the principle of prohibition of abuse, the principle of property rights, and the principle of excessive prohibition.

Therefore, the plaintiff's assertion against this is without merit.

3. Conclusion

Therefore, since the disposition of this case is legitimate, the plaintiff's claim seeking its revocation is dismissed as it is without merit, and the costs of lawsuit are assessed against the losing plaintiff. It is so decided as per Disposition.