(a) The method of calculating gains on transfer where the actual transaction values can be disclosed at the time of enforcement of the former Income Tax Act (amended by Act No. 3271, Dec. 13, 1980);

(b) The time limit within which data can be submitted in a lawsuit seeking revocation of taxation disposition;

A. Even if the tax authority determines capital gains based on the standard market price due to the presumption that the transfer margin or the final return on tax base with respect to the transfer of assets at the time of entry into force of Articles 23(4) and 45(1)1 of the former Income Tax Act (amended by Act No. 3271, Dec. 13, 1980); and Article 170(3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 10120, Dec. 31, 1980), there is evidence to reverse such presumption, i.e., where the actual transaction price is clearly revealed by the data investigated by the tax authority or the data submitted by the taxpayer, the transfer margin should be calculated based on the actual transaction price; and the method of the estimate investigation shall not be based on the standard market

B. In a lawsuit seeking revocation of a taxation disposition, the subject matter to be deliberated shall be deemed to be the existence of the taxable value decided by the tax authority. Therefore, the litigant may submit all the data on the existence or scope of the tax base, etc. and assert that the tax disposition is lawful by the submitted data until the conclusion of the fact-finding hearing

(a)Article 23(4) and Article 45(1)1 of the former Income Tax Act (amended by Act No. 3171 of Dec. 13, 1980), Article 170(3) and (b) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10120 of Dec. 31, 1980), Article 26 of the Administrative Litigation Act;

A. Supreme Court Decision 83Nu533 delivered on December 27, 1983; 84Nu394 delivered on October 23, 1984; 86Nu46 delivered on March 25, 1986; b. Supreme Court Decision 84Nu339 delivered on December 11, 1984; 86Nu321 delivered on March 24, 1987

[Judgment of the court below]

Head of Dong Tax Office

Seoul High Court Decision 85Gu657 delivered on April 2, 1987

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

The purpose of the provision of Articles 23(4) and 45(1)1 of the former Income Tax Act (amended by Act No. 3271 of Dec. 13, 1980) to be applied in this case is that if a resident who transfers assets, files a preliminary return or final return on transfer margin or final return on transfer margin, the transfer income amount shall be determined based on the actual transaction price, and if the preliminary return on transfer margin or the final return on tax base is not made, the transfer income amount may be determined based on the standard market price, which is the method of estimated assessment, by presumption that the actual transaction price is unclear, because the transfer of assets at the time of the enforcement of the former Income Tax Act can be determined based on the standard market price, even if the tax office determines the transfer income based on the standard market price by presumption that the actual transaction price is unclear due to the lack of the preliminary return or final return on transfer margin as to the transfer of assets at the time of the enforcement of the former Income Tax Act, i.e., the data investigated by the tax authority or the data submitted by the taxpayer, it cannot be determined based on the standard market price.

In addition, in a lawsuit seeking cancellation of a tax disposition, the object of the trial shall be deemed to be the existence of the taxable value decided by the tax authority, and therefore, the parties to the lawsuit may submit all the data on the existence or scope of the tax base until the closing of argument in the lawsuit seeking cancellation of the tax disposition and claim that the tax disposition be judged on the legitimacy of the tax disposition based on the submitted data until that time. In applying the former Income Tax Act, even if the tax authority did not make any tax disposition based on the standard market price because the actual transaction price is unclear at the time of the imposition of the transfer income tax, if the actual transaction price was found in the lawsuit seeking cancellation of the tax disposition, then the tax amount calculated based on the transfer income tax should be determined on the basis of the determination of the illegality

The judgment of the court below to the same purport is just and there is no ground to err by misapprehending the legal principles of the former Income Tax Act and the Enforcement Decree thereof.

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 Lee B-soo (Presiding Justice)