Method of calculating capital gains, if there is no preliminary or final return on transfer of assets;

The calculation of capital gains shall be based on the actual transaction price in accordance with the principle of substantial taxation, or on the amount of capital gains, if there is no preliminary return of marginal profit from the transfer of assets or final return of tax base, and thus, in this case, it is unclear whether the actual transaction price is unclear, it shall

Articles 23, 95, and 100 of the Income Tax Act

Supreme Court Decision 77Nu222 delivered on December 27, 197, 79Nu329 delivered on February 26, 1980, 80Nu90 Delivered on July 8, 1980

Plaintiff

Head of Ansan Tax Office

Seoul High Court Decision 82Gu760 delivered on April 20, 1983

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

We examine the grounds of appeal.

. Article 23 (5) of the Income Tax Act which was enforced at the time of the transfer of land: “If the actual transaction price is unclear, the transfer price shall be based on the actual transaction price at the time of the transfer of relevant assets”; “the resident who transfers assets as prescribed in subparagraphs of Article 23 (1) shall, under the conditions as prescribed by the Presidential Decree, report the transfer margin calculated under the provisions of paragraph (2) of the same Article to the Government not later than the end of the month following the transfer date under the conditions as prescribed by the Presidential Decree.” Article 100 (1) of the same Act provides, “the resident who has the tax base of global income, retirement income, transfer income, or forestry income in the corresponding year shall make a report to the Government not later than April 30 of the following year under the conditions as prescribed by the Presidential Decree.” Article 170 (3) of the Enforcement Decree of the same Act provides, or if the resident who has transferred assets under each subparagraph of Article 23 (1) of the Act fails to make the actual transaction price determined based on the actual transaction price at the time of transfer income.”

Therefore, in this case where the plaintiff transferred the site of this case but did not make a final report on the profit from the transfer of the land of this case, the original adjudication that the transfer income tax of this case should be calculated according to the current base value at the time of transfer cannot be deemed to be erroneous in the misapprehension of legal principles, and as long as the plaintiff claims the imposition of the transfer income tax based on the actual transaction value, the argument that the transfer income tax should be calculated based on the actual transaction value should not be adopted as an independent opinion of the above former Income Tax Act and its Enforcement Decree

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 Il-young (Presiding Justice)