(a) Criteria to determine whether income from the sale and purchase of real estate is business income or capital gains;

B. The meaning of the no taxation without law

A. Article 1(1) of the Enforcement Rule of the Value-Added Tax Act and Article 20(1)1 of the General Rule of the Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990) provide that cases can be seen as real estate sales business under Article 20(1)8 of the former Income Tax Act and Article 36 subparag. 3 of the Enforcement Decree of the same Act. Whether the sales of certain real estate belongs to business income under the Income Tax Act or is subject to capital gains tax should be determined according to social norms in consideration of whether the sales for the purpose of profit, the degree of continuity and repetition of business activities can be seen as business activities in light of the size, frequency, mode, etc. of the sales.

B. The principle of no taxation without representation refers to the principle that a taxation requirement, such as a taxpayer, a taxable object, a tax base, and a tax rate, must be determined by law. The taxation requirement itself is not to be determined by law, and it does not prevent a reasonable interpretation and application in accordance with the social norms or the general principles of law in the application stage of the tax law

A. Article 20 (1) 8 of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990), Article 36 subparagraph 3 B of the Enforcement Decree of the Income Tax Act, Article 59 of the Constitution

A. Supreme Court Decision 90Nu6217 delivered on February 26, 1991 (Gong1991,112), 91Nu6559 delivered on November 26, 1991 (Gong192,356), 92Nu14526 delivered on February 23, 1993 (Gong193Sang, 1105)

Plaintiff

Samsung Head of Samsung Tax Office

Seoul High Court Decision 93Gu25501 delivered on April 20, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

Article 1 (1) of the Enforcement Rule of the Value-Added Tax Act and Article 2-4-8-20 (1) 1 of the General Rules of the Income Tax Act provide that "where real estate is sold or real estate is acquired at least once within a taxable period of one taxable period under the Value-Added Tax Act for the purpose of business by indicating the sale and purchase or brokerage of real estate for the purpose of business, and has been sold at least twice for the purpose of business" shall be subject to the scope of real estate sales under Article 20 (1) 8 of the former Income Tax Act (amended by Act No. 4281 of Dec. 31, 1990) and Article 36 subparagraph 3 of the Enforcement Decree of the same Act. However, the above provision is merely an exceptional provision that can be seen as real estate sales, but it is merely subject to the income tax or transfer income tax under the Income Tax Act. Whether the sale and purchase of a certain real estate belongs to the business income under the Income Tax Act, and whether the sale and purchase of such real estate can be seen as business activity, its continuity and repetition.

According to the reasoning of the judgment of the court below, the plaintiff entered into a partnership business contract with non-party 1 on February 3, 1989, acquired two lots of land outside Seoul Jung-gu ( Address omitted), and constructed a new building on November 20, 1796 square meters of building 1796.49 square meters on the ground of reinforced concrete building on the same year, and leased part of the above building on May 19, 1990 and transferred the above land and building to non-party 2 and non-party 1 for price 2,00,000 won on May 19, 1990, and it was just for the court below to find that the plaintiff's income from the sale of the above land 3,576.7 square meters and building 5,48.54 square meters on the land for ten years from 1977 to 190, and there was no error in the misapprehension of legal principles as to the sale and purchase of the above real estate and its income from sale of the real estate every year.

In addition, the principle of no taxation without the law refers to the principle that a taxation requirement, such as a taxpayer, a taxable object, a tax base, and a tax rate, must be determined by law. The taxation requirement itself is not to be determined by law, and it does not prevent a reasonable interpretation and application in accordance with the social common principles or the general principles of law in the application stage of the tax law that provides for this. On the contrary, the Plaintiff’s assertion that the judgment of the court below is contrary to the principle of no taxation without the law or allowing a arbitrary statutory interpretation of the tax office by using the uncertain concept of social norms, thereby taking part in the right to equality of the people who are liable

All arguments are without merit.

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 Shin Sung-sung (Presiding Justice)