(a) Whether the transfer margin accruing from the transfer of land, etc. of a non-profit domestic corporation is subject to the special surtax in case where it does not fall under the income accruing from profit-making business or income under each subparagraph of Article 1

B. Whether some parts are used as sports facilities, such as teccoke, and the remaining parts are land owned by a religious corporation, which is left alone, directly used for the proper purpose of the corporation under Article 59-3(1)17 of the former Corporate Tax Act (amended by Act No. 30, Dec. 30, 1989) (negative)

C. Whether the provisions of Article 124-4(3) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 12565, Dec. 31, 198) under Article 124-4(3) (amended by Presidential Decree No. 12565, Dec. 31, 198

(d) The case holding that as long as Gap and Eul were dissatisfied with the entire disposition of special surtax on the land in the previous trial procedure, it cannot be deemed that there was a defect that did not pass through the previous trial procedure on this part because the grounds for illegality for Eul's land were added in the litigation procedure

E. The method of calculating gains on transfer, which is the tax base of special surtax pursuant to Article 124-2(6) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 12878, Dec. 30, 1989) where only one of the transfer values and acquisition values is unclear;

(a) All corporations (excluding the State, local governments, etc.) are obligated to pay special surtax on gains from transfer when land, etc. is transferred. In such cases, gains from transfer accruing from the transfer of land, etc. by a non-profit domestic corporation shall be subject to special surtax unless it falls under the non-taxation and exemption prescribed in Article 59-3 of the Corporate Tax Act, even in cases where this does not fall under the taxable income of corporate tax on income for each business year of the relevant corporation as it does not fall under the income accrued from profit-making business or income prescribed in

B. In a case where part of the land owned by a religious foundation is installed and used as a sports facility for employees, and part of the remaining land is left alone, it cannot be deemed that the land is directly used for the proper purpose of the pertinent corporation subject to the exemption of special surtax under Article 59-3(1)17 of the former Corporate Tax Act (amended by Article 9(2) of the Addenda of the Regulation of Tax Reduction and Exemption Act, December 30, 1989).

C. In order to meet the non-taxation requirements under Article 59-3(1)4 of the former Corporate Tax Act (amended by Act No. 4020 of Dec. 26, 1988), the provision of Article 124-4(3) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 12565 of Dec. 31, 198) is merely a provision on the interpretation of the mother law, and in addition, in a case where a disposition of replotting does not constitute farmland, it is included in farmland as of the date of the transfer for the benefit of taxpayers, so the above provision of the Enforcement Decree of the former Corporate Tax Act reduces the non-taxation requirement under the mother law or does not conform to the mother law.

D. As long as the Plaintiff appeals against the entire taxation disposition by Defendant A and the head of the tax office regarding the transfer margin of the entire land transfer, it cannot be deemed that there was a defect that did not go through the procedure of the previous trial on the ground that the grounds for illegality regarding the land B, which was not alleged in the previous trial procedure, was added to the procedure of the national tax examination and national tax trial.

E. The provisions of Article 59-2 (3) of the former Corporate Tax Act and Article 124-2 (6) of the Enforcement Decree thereof prior to the enactment by Presidential Decree No. 12878, Dec. 30, 1989 of the former Enforcement Decree of the Corporate Tax Act are based on the standard market price stipulated in Article 115 of the Enforcement Decree of the Income Tax Act in the calculation of gains on transfer, which is the tax base of special surtax, where the transfer value and the acquisition value are unclear, and there is no provision applicable to the proviso of Article 170 (1) of the Enforcement Decree of the Income Tax Act or the provisions of the Enforcement Decree of the former Enforcement Decree thereof in the calculation of the tax base of special surtax. In addition, in calculating the tax base of special surtax, the above two values shall be calculated on the basis of the standard market price

A. Article 1(1) of the Corporate Tax Act (amended by Act No. 4020, Dec. 26, 1988); Article 59-2(b) of the Corporate Tax Act (amended by Act No. 4020, Dec. 26, 1988); Article 59-3(1) and Article 124-2(6) of the former Corporate Tax Act

A. Supreme Court Decision 80Nu455 delivered on October 26, 1982 (Gong1983,100) (Gong1983,100). Supreme Court Decision 87Nu777 delivered on November 10, 1987 (Gong1988,117). 88Nu6252 delivered on February 14, 1989 (Gong1989,437) 89Nu664 delivered on February 13, 1990 (Gong190,683). Supreme Court Decision 88Nu9800 delivered on August 8, 1989 (Gong1989,1375), Supreme Court Decision 89Nu6426 delivered on October 23, 1990 (Gong190,2451).

[Defendant-Appellant] Cho Sung-sung Foundation, a foundation

Head of Sungbuk Tax Office

Seoul High Court Decision 90Gu6035 delivered on March 15, 1991

All appeals are dismissed.

The costs of appeal shall be assessed against each appellant.

1. We examine the Plaintiff’s grounds of appeal.

(1) Comprehensively taking into account the provisions of the proviso of Article 1(1), Articles 1(4) and (5), 59-2 and 59-3 of the Corporate Tax Act, where assets owned by a corporation are sold or sold, the difference is a profit-making corporation or non-profit profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit under the proviso of Article 1(1) of the Corporate Tax Act, and where income-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit-making profit.

In addition, Article 59-3 (1) 17 of the Corporate Tax Act (Article 19 (2) of the Addenda to the Regulation of Tax Reduction and Exemption Act of December 30, 1989) provides that "income accrued from the transfer of land, etc. directly used for its own proper purpose by a corporation established for the purpose of dissemination of religion. Other edification (including an unincorporated association foundation or other organization)" as one of the grounds for non-taxation of special surtax. As determined by the court below, the small-dong land in the judgment of the court below is part of the land for the small-dong land, which was installed in the tecco and sccoke and used for the sports facilities of employees working in the nearby Sungsi Hospital, and if part of it is left unattended in the site, the land is not directly used for the proper purpose of the Plaintiff corporation

In the reasoning of the judgment below, even if the plaintiff is a nonprofit corporation, the plaintiff provided the above land to the welfare facilities of employees engaged in the medical business under Article 1 (1) (2) of the Corporate Tax Act, which is subject to corporate tax, or left the land alone. Thus, it is difficult to regard the land used for the proper purpose of the plaintiff corporation as the land of the non-profit corporation, as seen above, because it seems that there is confusion about corporate tax and special surtax imposed on the transfer margin of the transfer of the land, etc. imposed on the income for each business year. However, the conclusion that the above land does not constitute the land directly used for the proper purpose of the plaintiff corporation is justifiable. The arguments are

(2) Article 59-3 (1) 4 of the Corporate Tax Act (amended by Act No. 4020 of Dec. 26, 198) provides that "income accrued from the transfer of land which the corporation cultivated for not less than eight consecutive years until the transfer date and which is subject to taxation of farmland tax (including non-taxation, reduction and exemption, and collection of small amount)" shall not be imposed special surtax. The purport of the above provision is to reduce the tax burden due to the transfer of farmland as part of land farming policy and to make the owner. Thus, in order to meet the non-taxation requirements under subparagraph 4 above, it shall be the land actually used for farming as of the transfer date regardless of its public land category (the land category in public register No. 87Nu777 of Nov. 10, 1987; the provisions of the Enforcement Decree of the Corporate Tax Act which were derived from the transfer date, which are nothing more than 88Nu6252 of Feb. 14, 1989 and the provisions of the Enforcement Decree of the Corporate Tax Act before the transfer date shall not be included in the above provisions of land.

The court below's decision that the above small-scale land was not actually used for farming as of the date of transfer and that the income from such transfer does not constitute a non-taxable income under the above provision is justified and acceptable as it is in accordance with the above purport, and there is no error of law in interpreting the law in the judgment of the court below in the opposite opinion.

2. We examine the defendant's grounds of appeal.

(1) According to the reasoning of the judgment below, the court below found that the defendant imposed the tax in this case on all transfer margin from the transfer of the land of Sogdong and the land of Sogdong in the judgment of the plaintiff corporation, and the plaintiff asserted only the illegal ground for the above Sogdong land in the pre-trial trial procedure while dissatisfied with the whole national tax assessment and the judgment of the court below, and added the illegal ground for the above Sogdong land to the litigation procedure of this case. As long as the plaintiff is dissatisfied with the whole of the tax disposition of this case, although the plaintiff added the illegal ground for the above Sogdong land in the litigation procedure of this case, it cannot be deemed that there was a defect that did not go through the pre-trial trial procedure of this part due to the addition of the illegal ground for the above Sogdong land in the litigation procedure of this case, and rejected the defendant's main defense of safety. The judgment below

(2) The provisions of Article 124-2 (7) of the Enforcement Decree of the Corporate Tax Act and Article 59-2 (3) of the Enforcement Decree of the Corporate Tax Act prior to the enactment by Presidential Decree No. 12878 of December 30, 1989 and Article 124-2 (6) of the Enforcement Decree of the Corporate Tax Act shall be the transfer value and the amount based on the standard market price at the time of transfer and the standard market price at the time of its acquisition in the case where the transfer value and the acquisition value are unclear. The above standard market price is based on the standard market price under Article 115 of the Enforcement Decree of the Income Tax Act, and the above Acts and subordinate statutes shall also apply mutatis mutandis to the calculation method of transfer margin based on the type of transaction under Article 170 (4) 1 and 2 of the Enforcement Decree of the Income Tax Act, which provides for the calculation method of transfer margin under the proviso of Article 170 (1) of the Enforcement Decree of the Income Tax Act or the above Enforcement Decree. In calculating the tax base of special surtax, in cases where both are unclear only one party.

The judgment of the court below on the same purport is just and there is no argument in the theory of objection to the contrary. All arguments are groundless.

3. Therefore, both appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-ju (Presiding Justice)