분할 전후를 통하여 토지이용 현황에 변화가 없어 기준시가 없는 토지로 본 처분은 부당하다는 주장의 당부[국승]
The legitimacy of the allegation that this disposition is improper on land without any change in the current land use status before and after the division.
The officially assessed individual land price before subdivision was determined on the basis of forests and fields, but the land was purchased on the premise that the form and quality should be changed to the school site after subdivision, and the land category was connected to the land scheduled to be a road after subdivision, and the land category was changed to a school site. Therefore, a disposition that deemed land without standard market price as land due to a change in land
The contents of the decision shall be the same as attached.
Article 96 (Transfer Price)
Article 96 (Assessment of Standard Market Price of Land and Buildings)
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
The Defendant’s disposition of imposition of capital gains tax of KRW 84,193,310 for the Plaintiff on February 11, 2008 shall be revoked.
1. Details of the disposition;
"가. 원고와 심○○는 ○○시 ○동 ○ 15-1 임야 78,388㎡(이하분할 전 모지전 토지'라 한다)를 공유하고 있던 중, 2004. 3. 31. ○○○○○ 주식회사(이하소외 회사'라고 한다)에게 그 가운데 11,840㎡를 특정하여 평당 750,000원(≒ ㎡당 227,272원)에 매도하였다.", "나. 분할 전 모 지번 토지는 원래 78,388㎡이었으나 2004. 5. 28. 그 면적이 74,445㎡로 축소 정정된 후 ○동 30-21 임야로 등록 전환되었고, 위 매매 계약의 이행을 위하여 거기서 같은 동 30-22 임야 11,840㎡(이하이 사건 토지'라 한다)를 분할하는 바람에 결국 62,605㎡만 남게 되었다. 그 후 원고는 2004. 5. 28. 소외 회사로부터 위 매매계약의 잔금을 지급받고 이 사건 토지의 소유권이전등기를 마쳐 주었다.",다. 이 사건 토지는 2003. 11. 24. 도시관리계획상 초등학교 시설 부지로 결정되었고, 2005. 11. 7. 공공용지의 협의취득을 원인으로 소외 회사로부터 경기도로 소유권이 이전되었으며, 2006. 5. 19. 그 지목이 임야에서 학교용지로 변경되었고, 한편 분할 전 모 지번 토지 중 나머지 부분은 도시관리계획에 의하여 도로 및 근린공원용지 등으로 결정되었다.
D. On July 2004, the Plaintiff calculated capital gains tax of KRW 4,185,660 per square meter (based on January 1, 2003) on the transfer of shares in the instant land, 48,282, which is owned by the Plaintiff, by applying KRW 11,800 per square meter (based on January 1, 2003), which is an individual official time for the parcel number of the land before partition, and paid the scheduled return.
E. On October 31, 2004, when the officially assessed individual land price of the instant land was first publicly announced, the head of the Suwon Tax Office requested the Korea Appraisal Board and the Korea Appraisal Board, Inc., ○○○○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○
F. In light of the above appraisal value, the Defendant: (a) determined the value of the instant land as KRW 61,250 per square meter; and (b) calculated the transfer income tax again; and (c) on February 11, 2008, the Defendant issued the instant disposition imposing an additional amount of KRW 84,193,310 on the Plaintiff for the transfer income tax reverted to
G. The Plaintiff was dissatisfied with the instant disposition and requested to the Tax Tribunal for an inquiry on February 29, 2008, but was dismissed on June 24, 2008.
(h) The officially assessed individual land price of each parcel number divided into the land before subdivision shall be as follows:
[Ground of recognition] In the absence of dispute, Gap evidence 1-1, Gap evidence 2-1, Gap evidence 4, Eul evidence 5-1 through 3, Gap evidence 8-1, 2, Gap evidence 9, 11, Eul evidence 1-4, Eul evidence 5-1 through 3, the fact inquiry results in the Osan market of this court, and the purport of the whole pleadings.
2. Whether the disposition is lawful;
A. The plaintiff's assertion
(1) At the time of the transfer of the instant land, the officially assessed individual land price was publicly announced as to the land parcel number before subdivision, and thereafter, there was no significant change in the characteristics, dignity, or circumstances of the land, which serves as the basic data for calculating the officially assessed individual land price due to subdivision and registration conversion. As such, the officially assessed individual land price of the instant land before subdivision ought to be deemed as the publicly assessed individual land price of the instant land. Therefore, the instant disposition against which the transfer income tax
Luxembourg even if it is deemed that there exists no officially assessed individual land price of the instant land, in light of the fact that the officially assessed land price as of July 1, 2004, was set at a lower price of KRW 39,000 per square meter, the Defendant’s determination of the value of the instant land at the time of May 28, 2004 nearest to that point would be an assessment pursuant to Article 164(1) of the Enforcement Decree of the Income Tax Act, which would result in an unreasonable result, which would result in a higher tax burden than that subject to the publicly assessed individual land price as of July 1, 2004, and thus, in light of this point, the instant disposition is unlawful as it is against the taxation equity.
(b) Related statutes;
Article 96 (Transfer Price)
Article 96 (Assessment of Standard Market Price of Land and Buildings)
C. Determination
(i)whether there is no officially assessed individual land price;
Article 99 (1) 1 (a) (proviso) of the former Income Tax Act (amended by Act No. 7319, Dec. 31, 2004; hereinafter the same) is only delegated to the Enforcement Decree of the same Act with regard to the method of assessing the value of the land without a publicly assessed individual land price. Thus, it cannot be limited to cases stipulated in any subparagraph of Article 164 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 18705, Feb. 19, 2005; hereinafter the same shall apply). Therefore, in a case where one parcel of land is divided into two or more lands, it is unreasonable to apply the publicly assessed individual land price to the land before such division, on the premise that the land was divided into three or more lots of land before and after the division, and that the land was divided into three or more lots of land under the proviso of Article 99 (1) 1 (a) of the Income Tax Act and Article 164 (1) 2 of the Enforcement Decree of the same Act.
In full view of such overall circumstances, the land in this case is deemed to have changed in the specific land use status due to changes in the nature, form, and quality of the land through before and after the division. Thus, the land in this case after division constitutes a land without a publicly assessed individual land price stipulated under the proviso of Article 99(1) of the former Income Tax Act and Article 164(1)2 of the Enforcement Decree of the same Act. Therefore, it is unreasonable to apply the officially assessed individual land price to the land in this case.
Doz. Whether the evaluation of the value of land is illegal
The Defendant, taking account of the appraised value into account, gains a large amount of 227,272 won per parcel of land, and thus, considering all such circumstances, the appraisal value of the instant land was determined higher than the officially assessed individual land price after several months cannot be deemed to have been reasonable assessment method based on Article 164(1) of the Enforcement Decree of the Income Tax Act. As long as there is no illegality in the appraisal method, even if the amount of capital gains tax calculated based on the appraised value is somewhat higher than the amount of capital gains tax based on the publicly assessed individual land price determined thereafter, the disposition imposing capital gains tax cannot be deemed to be an unlawful disposition against the taxation equity.
Article 12 of the Civil Code provides that the disposition of this case is legitimate, and the plaintiff's assertion disputing this is without merit.
3. Conclusion
The plaintiff's claim is dismissed on the ground that it is without merit.