(a) Where the transaction falls under the category provided in Article 170 (4) 2 of the Enforcement Decree of the Income Tax Act, but the transfer margin under the actual transaction value falls short of that based on the standard market price, the method of calculating transfer margin; and

B. The court’s measure in a case where a taxation disposition is deemed unlawful because it was erroneous in the process of calculating the amount of tax in a lawsuit seeking revocation

A. According to Articles 23(4)1 and 45(1)1(a) of the Income Tax Act, and Article 170(4)2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989), even if a transaction constitutes so-called speculative transaction under Article 170(4)2 of the Enforcement Decree of the Income Tax Act, if the transfer margin based on the actual transaction price falls short of the standard market price, the tax authority may exclude the transaction from the application of the actual transaction price.

B. In a lawsuit seeking revocation of a tax disposition, where a taxation disposition is deemed unlawful because it was erroneous in the process of calculating the amount of tax, the court is not obligated to calculate the amount of tax by claiming and demanding the tax authority to prove and prove whether the calculation of gains on transfer is based on the standard market price or based on the actual transaction price. Therefore, the court is sufficient to revoke the entire illegal taxation disposition and allow the tax authority to make a decision of correction in accordance with the relevant judgment.

(a) Article 23 (4) 1, Article 45 (1) 1 (a) of the Income Tax Act, Article 170 (4) 2 (b) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of August 1, 1989), Article 1 of the Administrative Litigation Act / [general administrative disposition]

A. Supreme Court Decision 91Nu10848 delivered on May 12, 1992 (Gong1992, 1913) 93Nu852 delivered on July 16, 1993 (Gong1993Ha, 2325) 93Nu15090 delivered on January 28, 1994 (Gong1994Sang, 857) b. Supreme Court Decision 87Nu647 delivered on April 11, 1989 (Gong1989, 758) 91Nu6542 delivered on December 24, 191 (Gong192, 800)

Plaintiff

Head of the Cleanness Tax Office

Seoul High Court Decision 94Gu1618 delivered on December 6, 1994

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

According to Articles 23(4)1 and 45(1)1(a) of the Income Tax Act and Article 170(4)2 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989), where the actual transaction price can be confirmed in a specific transaction designated by the Commissioner of the National Tax Service, the transfer difference shall be calculated based on the actual transaction price as an exception to the standard market price principle. Article 72(3)2 of the Regulations on the Management of Property Tax (amended by the National Tax Service Directive No. 980) provides that “when the right to acquire real estate is transferred” as one of the transaction designated by the Commissioner of the National Tax Service under the above Enforcement Decree, which is a legal order issued pursuant to the above Enforcement Decree, and the court below voluntarily determined the actual transaction price of the instant apartment, so the transaction of this case where the right to acquire the apartment of this case can be calculated based on the actual transaction price as an exception to the standard market price.

However, even if a certain transaction constitutes so-called speculative transaction under Article 170 (4) 2 of the Enforcement Decree of the above Act, if the transfer margin based on the actual transaction price is not completed based on the standard market price, the tax authority may exclude the transaction from the application of the standard market price (see, e.g., Supreme Court Decisions 91Nu10848, May 12, 1992; 93Nu15090, Jan. 28, 1994). As to the transaction in this case, the defendant may exclude the transfer margin based on the standard market price from the application of the standard market price if the transfer margin based on the standard market price exceeds the transfer margin based on the actual transaction price. However, the defendant did not assert and prove that the standard market price of the right to acquire the apartment in this case is much much, and there was no argument that the transaction in this case constitutes an exception to the standard market price principle based on the actual transaction price.

Therefore, it cannot be deemed that the transfer margin of the transaction of this case shall be calculated based on the actual transaction price. In this case, the court of original judgment does not have a duty to calculate the legitimate tax amount by demanding the defendant to assert and prove whether the calculation of the transfer margin is based on the standard market price or based on the actual transaction price (see Supreme Court Decision 91Nu6542 delivered on December 24, 191). Thus, the court of original judgment is sufficient to cancel the whole illegal taxation and order the defendant to make a decision of correction in accordance with the judgment.

Therefore, although the judgment of the court below that revoked the entire disposition of this case is somewhat insufficient, it is just in its conclusion, and it cannot be viewed that there is an error of law that affected the conclusion of the judgment due to a misunderstanding of legal principles or lack of reasoning, as discussed in the judgment below.

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 Jeong Jong-ho (Presiding Justice)