In case where the tax amount calculated by the tax authority in an unlawful manner does not exceed the reasonable scope of tax amount, whether the taxation disposition is lawful (affirmative)

In calculating the transfer income tax amount which is the basis for calculation of the defense tax amount, the transfer value shall be based on the actual transaction value, and the acquisition value shall be calculated based on the standard market price amount is illegal under the Income Tax Act, or if the tax amount calculated by the above method does not exceed the scope of the legitimate tax amount calculated based on the standard market price or the actual transaction price, the above disposition is legitimate.

Article 23 of the Income Tax Act, Article 170 of the Enforcement Decree of the Income Tax Act

Supreme Court Decision 84Nu457 delivered on September 25, 1984

Plaintiff

The Director of Gangnam District Office

Seoul High Court Decision 82Gu739 delivered on May 16, 1983

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds of appeal are examined.

With respect to the First and Second Points:

Article 3 (3) of the former Defense Tax Act (amended by Act No. 3476 of Dec. 31, 1981) provides that no defense tax shall be imposed on the income enumerated in Article 6 (2) 1 of the Income Tax Act. Article 6 (2) 1 of the former Income Tax Act (amended by Act No. 3271 of Dec. 13, 1980) provides that the income accrued from the direct transfer to the State or local governments under the conditions as prescribed by the Presidential Decree shall be exempted from income tax. Article 17 (2) 1 of the former Enforcement Decree of the Land Expropriation Act (amended by Presidential Decree No. 10120 of Dec. 31, 1980) provides that the assets stipulated in Article 6 (2) 1 of the former Land Expropriation Act and other public projects under the same Act shall be deemed to violate the provisions of Article 25 and Article 26 (2) 1 of the Urban Planning Act, and the Minister of Construction and Transportation shall establish and publicly notify the approval of the implementation plan under the same Act.

With respect to the third point:

According to the reasoning of the judgment below, in calculating the transfer income tax amount which is the basis for calculating the tax base of the defense tax amount of this case, the court below held that the transfer value shall be based on the actual transaction value and the acquisition value shall be calculated based on the standard market price, so the transfer value and the acquisition value shall be calculated based on the standard market price, so the transfer value and the acquisition value shall be calculated based on the standard market price, and 527,217,473 won calculated by deducting the acquisition value of KRW 3,182,527 from the transfer value based on the standard market price, and 263,60,608,736 won as gains from transfer shall be calculated based on the gains from transfer, and the tax base amount of KRW 94,89,144, the defense tax amount of this case shall be calculated based on the tax base amount to be assessed within the scope of the tax amount calculated based on the standard market price, which is ultimately lawful.

In light of the records, the court below's calculation of the defense tax of this case based on the amount of 527,217,473 won calculated on the basis of the standard market price and the amount of gains from transfer calculated on the basis of the acquisition value. The above calculation method is in violation of the principle of substantial taxation. However, the above calculation method is identical to the lawsuit that violates the principle of substantial taxation. However, the transfer income tax calculated on the basis of gains from transfer of 237,314,00 won, which is the real transfer value, is 118,657,000 won, and the tax base is 42,716,520 won if the defense tax is calculated on the basis of the amount of 118,716,520 won (the total amount of 35,597,100 won and additional tax amount of 7,119,420 won). Thus, the court below's judgment is justified and it is therefore justified in the conclusion of the judgment below.

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 Kim Jong-sik (Presiding Justice)