The validity of the whole taxation based on the tax base assessed by invalid provisions.

The taxation disposition based on the invalid provision is different from the case of a mistake in the calculation of the tax base amount, and thus, there is an error in the whole of the disposition, so the entire disposition should be revoked.

Article 1 of the Administrative Litigation Act, Article 170 (10) of the Enforcement Decree of the Income Tax Act (Presidential Decree No. 8960 on April 24, 1978)

[Defendant-Appellee] Plaintiff 1 et al.

The Director of the Korean Tax Office

Seoul High Court Decision 79Gu461 delivered on March 4, 1980

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal by the defendant litigant are examined.

Article 23 (2) and (5), Article 45 (1), Article 60, and Article 115 of the Enforcement Decree of the Income Tax Act (Act No. 3015, Dec. 19, 197), which was enforced at the time of the instant disposition, shall be based on the actual transaction price in principle, but if the actual transaction price is unclear, the calculation of transfer margin shall be based on the actual transaction price. Thus, Article 170 (10) of the Enforcement Decree of the Income Tax Act (Presidential Decree No. 8960, Apr. 24, 1978) which provides that the transfer margin shall be calculated based on the price investigated by the Commissioner of the National Tax Service, not the actual transaction price or the current market price, does not conflict with each of the above provisions of the mother law, and there is no other legal basis to apply the above provisions (Article 23 (6) of the Income Tax Act, which shall not be construed as the basis for its application). Thus, the court below erred in the misapprehension of legal principles as to the entire taxation disposition of this case.

Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Jong-young (Presiding Justice)