A. Whether it is unconstitutional that no special deduction for transfer income is made where the tax amount calculated by global income tax rate is the tax amount for transfer income pursuant to Article 70 (8) of the former Income Tax Act

(b) Calculation method of the actual transaction price by transferred asset in case where it is impossible to classify each actual transaction price because several real estate are traded collectively; and

(c) Whether Article 170(2) of the Enforcement Decree of the Income Tax Act is invalid

A. Article 70(8) of the former Income Tax Act (amended by Act No. 4019, Dec. 26, 1988) applies the global income tax rate by dividing the transfer income up to the time of transfer into the number of years held and converting the income up to one year into the total income. In such a case, non-special deduction for transfer income to reflect the inflation rate is natural in its nature and thus, it cannot be said that it violates the tax equality principle, the substantial principle of no taxation without law, and the principle of property right security under the Constitution.

B. In a case where transfer income is to be calculated based on the actual transaction price pursuant to Articles 23(4) and 45(1)1 of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990), where several real estate, such as land and buildings, are traded en bloc, and where it is impossible to distinguish each actual transaction price, the total actual transaction price can be calculated by calculated in proportion to the standard market price of each transferred asset pursuant to Article 170(2) of the Enforcement Decree of the Income Tax Act, and in this case, where the actual transaction price of one party is unclear, the actual transaction price shall be calculated based on the actual transaction price of the other party (amended by Presidential Decree No. 12767 of Dec. 31, 1990) pursuant to the proviso of Article 170(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194 of Dec. 31, 190).

(c) The provisions of Article 170 (2) of the Enforcement Decree of the Income Tax Act shall not be null and void, because it provides a reasonable method to calculate capital gains even where several assets are traded collectively.

A. Article 70(8) of the former Income Tax Act (amended by Presidential Decree No. 4281, Dec. 26, 1988); Articles 11, 23, and 59(b) of the Constitution of the Republic of Korea; Article 170(2) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 4281, Dec. 31, 1990); Articles 23(4) and 45(1)1 of the former Income Tax Act (amended by Presidential Decree No. 13194, Dec. 31, 1990); Article 170(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 13194, Dec. 31, 1990); Article 170(4)1 of the former Income Tax Act (amended by Presidential Decree No. 12767, Aug.

A. (2) Supreme Court Decision 92Nu2967 delivered on July 14, 1992 (Gong1992, 2453), Supreme Court Decision 92Nu5171 delivered on December 24, 1992 (Gong1993, 643) 93Nu845 delivered on September 28, 193 (Gong1993Ha, 2999)

[Judgment of the court below]

Head of Nam Busan District Tax Office

Busan High Court Decision 94Gu2008 delivered on January 13, 1995

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first ground for appeal

The judgment of the court below on the point that the theory of lawsuit points out (the point that the value of the land and the building which is the object at the time of the sale of this case is not distinguished) is justified in light of the evidence relation as stated by the court below, and there is no illegality such as misunderstanding of legal principles as to the concept of the actual transaction price, violation of precedents, and violation of the rules of evidence in the process.

2. On the second ground for appeal

Article 70(8) of the former Income Tax Act (amended by Act No. 4019, Dec. 26, 1988) applies the global income tax rate by dividing the transfer income from the time of transfer into the number of years held, and converting the transfer income from the time of transfer into the income for one year. In such a case, non-special deduction for transfer income to reflect a price increase rate is natural in its nature, and thus, it cannot be said that it violates the tax equality principle, the substantial principle of no taxation without law, and the principle of property right guarantee under the Constitution. The argument is without merit.

3. On the third and fourth grounds

Where the amount of capital gains is to be calculated based on the actual transaction price pursuant to Articles 23(4) and 45(1)1 of the former Income Tax Act (amended by Presidential Decree No. 4281, Dec. 31, 1990); where several real estates, such as land and buildings, are traded en bloc and it is impossible to distinguish each actual transaction price, the amount of capital gains shall be calculated based on the actual transaction price under the proviso to Article 170(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12767, Aug. 1, 1989; hereinafter the same shall apply). In such cases, where the actual transaction price of one party is unclear, it shall be calculated based on the actual transaction price of the other party, converted into the actual transaction price under the proviso to Article 170(1) of the Decree (see Supreme Court Decision 93Nu845, Sept. 28, 193).

Therefore, it is justifiable for the court below to determine that the transfer margin of this case should be calculated based on the value calculated by the above method.

In the case of converting the acquisition value of land and buildings based on the actual transfer value of this case, the theory of lawsuit shall first apply the proviso of Article 170 (1) of the Decree to convert the total acquisition value into the total acquisition value, and then distribute distribution pursuant to paragraph (2). Unless such interpretation is interpreted, the above provision of paragraph (2) is invalid without delegation of the parent law. However, it cannot be said that the calculation according to such order would be more reasonable. Accordingly, it would be the same result as the tax disposition of this case. The above provision of paragraph (2) does not mean that the reasonable method for calculating the transfer income even if several assets are traded collectively, it is not invalid. All arguments are without merit.

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

Justices Ahn Yong-sik (Presiding Justice)