The meaning of Article 115 (3) of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 9698 of Dec. 31, 1979) means that "at the time of acquisition, there is no rate of multiple rates to a specific area"

Article 115 (3) of the Enforcement Decree of the Income Tax Act, which was amended on December 31, 1979 and enforced on January 1, 1980, is located in a specific area at the time of the transfer, but it is interpreted that the provision shall apply to the case where the ratio was not determined, so it is not a ground to change the part that the transferred asset should be located in the specific area at the time of the acquisition of the transfer among the interpretation of the applicable requirements of the ratio under Article 115 (1) 1 (a) and (2) of the Enforcement Decree of the same Act.

Article 115(3) of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 9698, Dec. 31, 1979)

Supreme Court Decision 85Nu722 delivered on October 14, 1986 (defluence) 86Nu576 delivered on January 20, 1987 (defluence) 86Nu791 delivered on March 10, 1987 (defluence)

Plaintiff

Head of Southern District Tax Office

Seoul High Court Decision 85Gu1221 delivered on July 23, 1986

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. On the first ground for appeal:

Examining the relevant evidence, the court below is justified in finding that the plaintiff acquired the real estate of this case from non-party 1, 19 November 19, 197, in 30,000 won and transferred it to non-party 2, 37,000 won, which is consistent with the plaintiff's assertion that the plaintiff transferred it to non-party 13, 1980, and 7, 12, 9, 14, 22, and 23, and the non-party 3's testimony cannot be employed for the reasons as stated in its reasoning. Accordingly, in this case, the court below is justified in finding that the real transaction price of transfer and acquisition is unclear in calculating the gains on transfer of real estate, and there is no violation of the rules of evidence as alleged in the rules of evidence, such as the theory of lawsuit, and therefore, there is no error in the process of proof.In conclusion, we cannot accept it because it is merely a ground for finding evidence and fact-finding belonging to the whole authority.

2. On the second ground for appeal:

Article 23(4), Article 45(1), and Article 60 of the Income Tax Act (amended by Act No. 3098 of Dec. 5, 1978) which was enforced at the time of the establishment of taxation requirement of this case: (a) The transfer value and acquisition value shall be based on the standard market price at the time of transfer and acquisition if the actual transaction price is unclear; (b) the determination of the standard market price shall be delegated to the Presidential Decree; (c) Article 115(1)1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 929 of Dec. 30, 1978) provides that, in determining the standard market price of the real estate at the time of its acquisition, the value assessed by the rate of multiple factors in the specific area under the Local Tax Act at the time of its acquisition shall be based on the standard market price at the time of its acquisition; (a) Article 23(1) of the same Act provides that the above method of calculating the transfer price at the time of its acquisition shall be based on paragraph 17(a).

However, according to the reasoning of the judgment below, if the real estate in this case was not located in a specific area designated by the Commissioner of the National Tax Service as of December 12, 197 at the time of its acquisition, but is located in a specific area as of June 20, 1980 at the time of its transfer, the court below rejected the plaintiff's assertion that the real estate in this case should be calculated based on the standard market price under the Local Tax Act, since the real estate in this case was newly established on December 31, 1979, the transfer date of which was enforced since January 1, 1980, and there was no rate of the rate of the specific area at the time of its acquisition under Article 115 (3) 1 (a) of the Enforcement Decree of the same Act, and there was no rate of the rate of the ratio at the time of the acquisition of the real estate in this case, even though the acquisition price of the real estate in this case was not within the designated area at the time of its acquisition.

Ultimately, the judgment of the court below rejected the Plaintiff’s assertion and judged that the Defendant’s tax disposition based on Article 115(3) of the Enforcement Decree of the Income Tax Act was lawful, and thus, it is reasonable to interpret the content of the provision and apply accordingly.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Choi Jae-ho (Presiding Justice)