(영문) 서울행정법원 2018. 01. 23. 선고 2017구단60065 판결토지와 건물 등의 가액 구분이 불분명한 때에 해당하지 않음[국패]
It does not constitute a case where the value of land, buildings, etc. is unclear;
Since the amount entered in a sales contract is the transfer value, the disposition applying Article 100 (2) of the Income Tax Act is illegal because it violates the substance over form principle and the no taxation
Article 100 (2) of the Income Tax Act
2017Gudan6065 Revocation of Disposition of Imposing capital gains tax
KimA
CC director of the tax office
December 12, 2017
2018.01.23
1. The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2014 against the Plaintiff on July 13, 2016 shall be revoked.
2. The costs of the lawsuit are assessed against the defendant.
Cheong-gu Office
The same shall apply to the order.
1. Details of the disposition;
A. The Plaintiff owned 1/2 shares of 202, 302, 402, 502, and 118.32 shares of 601 among 1/2 shares of 202, 302, 302, and 101 among 601 shares of 1/2 of the instant land and 118.32 shares of 118.32 shares of 601 (hereinafter “the instant real estate issues”), and his father KimB owned 1/2 shares of the instant land and shares of 1/2 shares of 1,201, 301, 401, 501, 501 and 101 of the instant building (hereinafter “instant building”). The Plaintiff’s father KimB owned 786/10 of the instant real estate shares of 1/100 of the instant land and shares of 706/106 of the instant building (hereinafter “B”).
B. On September 16, 2014, the Plaintiff transferred the instant real estate to the Gangwon △△△△ and Kim △△△ (hereinafter referred to as the “transferee”), respectively, in KRW 0 billion, and KimB to the transferee on the same day, in KRW 0 billion.
C. After that, the Plaintiff reported and paid the transfer income tax to the Defendant with the transfer value of the instant real estate as KRW 0 billion. However, the Defendant calculated in accordance with Article 100(2) of the Income Tax Act by calculating the transfer value of the instant real estate and KimB real estate in accordance with Article 100(2) of the Income Tax Act, and deemed the transfer value of the instant real estate as KRW 000,000 on July 12, 2016, the Plaintiff corrected and notified the Plaintiff of KRW 000,000 for the transfer income tax reverted to the year 2014 (hereinafter
D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on October 7, 2016, but was dismissed on February 7, 2017.
Facts without any dispute, Gap's 1 through 4, Eul's 1, and the purport of the whole pleadings.
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
The Plaintiff did not receive the remaining money from the assignee in addition to KRW 0 billion in the transfer value of the instant real estate. Therefore, the Defendant’s instant disposition premised on the premise that the transfer value of the instant real estate is KRW 000,000 is in violation of the substance over form principle and the principle
B. Determination
In full view of the following circumstances, comprehensively taking account of Gap's evidence Nos. 1, 2, 3, and 6 through 11 (including branch numbers attached with serial numbers) and Eul's evidence Nos. 3 and the purport of the entire pleadings, it is reasonable to deem the transfer value of the pertinent real estate as KRW 0 billion. Unlike other circumstances, there is no evidence to recognize that the transfer value of the pertinent real estate is KRW 000. Therefore, the defendant's disposition of this case applying Article 100 (2) of the Income Tax Act on the premise that the transfer value of the pertinent real estate is KRW 000, is 000, and thus, is unlawful.
① Although the Plaintiff and his father KimB owned 1/2 of the instant land, in relation to the instant building, it is difficult to view that the transfer value of the instant real estate and KimB real estate should necessarily coincide with each other due to the difference in the direction or accessibility of the head office and KimB.
② The Defendant appears to be able to assert that some of the KimB real estate is the real estate trusted by the Plaintiff, but there is no evidence that the Plaintiff trusted part of the KimB real estate to KimB.
③ The sales contract prepared by the Plaintiff between the transferee and the transferee clearly states that the transfer value of the instant real estate is KRW 0 billion, and that written between the transferee and the transferee, KimB’s transfer value of KimB real estate is KRW 0 billion, respectively, and KimB was deposited in the bank account in the name of Kim Young-si, a corporation in which the Plaintiff operated the 000 won remaining after subtracting the lease deposit from KRW 000,000,000,000,000,000,000,000 won.
(4) There is no material that the Plaintiff received or used part of the purchase price of KimB real estate.
⑤ Under the premise that the transfer value of KimB’s real estate is KRW 0 billion, KimB paid KRW 0 billion in installments.
3. Conclusion
The plaintiff's claim is justified and it is so decided as per Disposition.