Whether Article 72(3)5 of the former Regulations on the Management of Property Tax Investigation (National Tax Service Directive No. 946) and Article 72(3)8 of the amended Regulations (National Tax Service Directive No. 980) are effective

The provisions of Article 72 (3) of the National Tax Service Directive No. 946, Article 72 (3) 5 of the Regulations on the Management of Property Tax Investigation, which provides for specific types of speculative transactions, shall be effective as a legal order in combination with the provisions of the Income Tax Act or the Enforcement Decree of the Act, since the provisions of Article 72 (3) of the Regulations on the Management of Property Tax Investigation, although the National Tax Service Directive set the subject of judgment on speculative transactions as the tax authority, the criteria for judgment shall not be subject to arbitrary judgment by the tax authority, it clearly stated the objective criteria for allowing only the transactions corresponding to subparagraphs 1 through 4 of the same Article to be an speculative transaction, not a violation of the principle of no taxation without the law, but a violation of the principle of no taxation without the law. However, the provisions of Article 72 (3) 8 of the amended Act No. 980, Jan. 26, 1987, which allow arbitrary discretion by the tax authority,

Articles 23 and 45 of the Income Tax Act; Article 170 (4) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 1, 1989); Article 72 (3) 5 of the former Regulations on the Management of Property Tax (amended by the National Tax Service Directive No. 946), Article 72 (3) 8 of the Regulations on the Management of Property Tax (National Tax Service Directive No. 980), Articles 38 and 59 of the Constitution

[Plaintiff-Appellee] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Domin-young and 1 other, Counsel for plaintiff-appellee)

Kim heading Kim

Head of Eastern Tax Office

Busan High Court Decision 89Nu1377 delivered on July 18, 1990

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below determined that the defendant's act of transferring (A) the land of March 11, 1986 constitutes Article 72 (3) 5 of the former Regulations on the Management of Property Tax (amended by National Tax Service Directive No. 980, Jan. 26, 1987) which was enforced by the National Tax Service Directive at the time, and that the transfer of the land of subparagraph (A) constitutes a violation of Article 23 (4) proviso, Article 45 (1) proviso, Article 170 (4) proviso of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767, Aug. 12, 1989) and Article 70 (3) 28 of the former Act and Article 97 (3) 9 of the former Ordinance of the National Tax Service's Act (amended by the National Tax Service Directive No. 980, Aug. 25, 1987). 208.

2. However, in each provision of Article 72(3) of the former Enforcement Decree of the Income Tax Act stipulating a specific type of transaction which is an speculative transaction pursuant to Article 170(4)2 of the former Enforcement Decree of the Income Tax Act, Article 946 of the above National Tax Service Directive and Article 72(3)5 of the above Regulation on the Management of Property Tax (amended by Presidential Decree No. 9807, Jan. 26, 1987) stipulate a specific type of transaction, which is the direction of the National Tax Service. However, although the tax authorities set the subject of judgment on speculative transaction as a tax authority, the criteria for judgment are clearly stated in the objective criteria for allowing only a transaction corresponding to subparagraphs 1 through 4 of the above Article to be an speculative transaction, not a violation of the principle of no taxation without the law, but a valid provision that can not be said to be beyond the authority delegated by the law, and the provisions of Article 980 subparag. 72(3)8 of the above Decree are effective in combination with the provisions of the Income Tax Act or its Enforcement Decree.

3. Therefore, the court below's revocation of the defendant's disposition on land transaction (A) 3/3/4 of the above National Tax Service Directive No. 980 on the ground that the above provision is null and void, and there is no ground to charge any error in the misapprehension of the above legal principles. Meanwhile, the court below's determination that the above provision No. 946 of the above National Tax Service Directive No. 946 was null and void on the transfer income tax belonging to 1986 is contrary to the above legal principles of the above precedents, and the court below erred in the misapprehension of legal principles. However, in light of the records, the court below's determination that the transfer of land (A) 1 of the above Order No. 946/72 (3) 1 through 4 of the above Order No. 946 of the National Tax Service Directive cannot be deemed to fall under the plaintiff's series of land transactions, and it cannot be deemed to fall under any transaction corresponding to the above subparagraphs, and therefore it is justified in the judgment below's revocation of the above disposition.

Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Chang-chul (Presiding Justice)