"서울 ㅇㅇ구 ㅇㅇ 앞에 있는 신혼예식장의 건물과 부지로 사용되고 있던 별지목록 기재 제1의 각 부동산(이하이 사건 부동산'이라 한다)과 별지목록 기재 제2. 가의 각 부동산은 원고와 소외 변ㅇ인, 변ㅇ경 3인 공유(공유지분은 원고 4분의 2, 변ㅇ인, 변ㅇ경 각 4분의 1씩임)로 등기되어 있었으며, 별지목록 기재 제2. 나의 부동산은 원고와 소외 황ㅇ현, 김ㅇ자, 변ㅇ관, 변ㅇ인 5인 공유(공유지분은 원고2869분의 70.13, 황ㅇ현 2869분의 584.31, 변ㅇ관, 변ㅇ인 각 2869분의 717.25씩임)로 등기되어 있었다. 이 사건 부동산 중 원고 소유 지분에 관하여는 1992. 9. 14. 위 변ㅇ인, 변ㅇ경 앞으로 1992. 9. 2. 교환을 원인으로 하는 소유권이전등기가 경료되고, 동시에 별지목록 기재 제2. 가의 각 부동산 중 위 변ㅇ인, 변ㅇ경 소유 지분에 관하여는 원고 앞으로 1992. 9. 2. 교환을 원인으로 하는 소유권이전등기가 경료되어, 이 사건 부동산 중 원고 소유 지분과 별지목록 기재 제2. 가의 각 부동산 중 변ㅇ인, 변ㅇ경 소유 지분 사이에 상호 교환이 이루어진 것으로 등기가 경료되었다. 또한 별지목록 기재 제2. 나의 부동산 중 위 변ㅇ관, 변ㅇ인의 각 소유 지분에 관하여 1992. 9. 9. 원고 앞으로 같은 날 매매를 원인으로 하는 소유권이전등기절차가 경료되었다.",피고는 이 사건 부동산에 관한 원고 소유 지분의 이전이 소득세법 제4조제3항 에 양도소득세의 과세대상으로 규정된 교환계약에 의한 자산의 유상양도에 해당하는 것으로 보고, 1993. 9. 16. 원고에 대하여 양도소득세 금319,074,050원을 부과하는 처분을 하였다. 그후 피고는 교환된 부동산 지분의 가액을 기준시가에 의하여 비교해 본 결과 원고가 이전받은 부동산(별지목록 제2의 각 부동산) 지분의 가액이 원고가 위 소외인들에게 이전해 준 부동산(이 사건 부동산) 지분의 가액보다 금625,397,704원이 더 많은 것으로 밝혀지자, 이는 원고가 위 소외인들에게 양도한 자산 중에는 이 사건 부동산에서 이루어지고 있던 위 신혼예식장의 영업에 대한 영업권이 포함되어 양도된 결과라고 판단하고, 1994. 6. 16. 원고가 양도한 위 영업권의 가액과 부동산 지분의 가액을 합한 전체 가액을 양도가액으로 하여 양도소득세액을 새로이 산출한 뒤 이미 부과한 위 세액을 공제한 잔액 금152,127,620원을 원고에게 추가로 부과하는 처분을 하였다.

The above facts are acknowledged by the evidence Nos. 1, 4-1, 2, 5-1, 8, 6, 14, 1, 1, 2, 3-1, 2, 4, and 5-1 to 8, 6, 14, 1, 2, and 3-1, 4, respectively.

2. Whether the taxation disposition is legitimate

A. According to the above facts, the defendant's additional disposition imposing capital gains tax on the plaintiff on June 16, 1994 did not separately determine the tax base and tax amount for the omitted taxable object and did not separately impose separate taxation, but it should be deemed a disposition to increase or correct the amount exceeding the tax amount imposed on the original disposition after calculating a single tax amount for the entire taxable object including the omitted portion from the original disposition on September 16, 1993. If there is a correction in the amount of tax assessment, the original disposition shall be deemed to be an independent disposition and only the subsequent corrective disposition shall be deemed to be subject to dispute (see Supreme Court Decision 96Nu617 delivered on February 9, 198, and Supreme Court Decision 96Nu617 delivered on June 16, 1994). Thus, we examine the legitimacy of the above disposition, which was corrected by the defendant as the defendant on June 16, 1994 (the amount imposed, which was added to the initial disposition, and shall be KRW 471,201,60).

B. The following facts are acknowledged according to the overall purport of Gap's evidence 2, 4, 7, 8, 10-1, 3-1, 5-1, 8, 9, 11, 12, 14, 15, 13-1 through 5, 4, 8, 8-10-2, 3-1, 5-1 through 8, 6, 9, 11, 14, and 13-1,

(1) On October 22, 1983, the plaintiff and the non-party side - officer jointly purchase the wedding hall and jointly manage it. On October 22, 1983, the plaintiff and the non-party side of the above wedding hall purchased each real estate and fixtures and the right to conduct the wedding hall business in the above two joint names and paid half of the purchase price in installments. On December 22 of the same year, the registration of transfer of ownership was completed in the plaintiff and the above side of the plaintiff and the non-party side of the above side of the plaintiff as acknowledged earlier. On January 5, 1984, the plaintiff and the above side of the wedding hall were permitted to change the name of the plaintiff and the above three-party side of the above wedding hall, and the actual management of the above wedding hall was entrusted to the plaintiff and the profits were distributed half thereafter.

(2) In relation to the registration of ownership transfer by purchasing on September 4, 1986 the real estate of 2. B as well as the above real estate on September 4, 1986, the Plaintiff and the above-mentioned changed - was registered in the name of five persons, who are the Plaintiff and the Plaintiff’s wife, Nonparty Kim - who are the Plaintiff’s children, and Nonparty - who are the Plaintiff’s children, and the above changed -

(3) On August 192, 192, there has been a dispute between the Plaintiff and the above-mentioned officers about the management of the above wedding hall, and there has been an agreement to terminate the partnership relation of the above wedding hall and divide the property. On August 1992, the Plaintiff and the above-mentioned changed officers concluded an exchange contract for share sharing on the building and site of the above wedding hall (the real estate in this case) and the parking lot lot (the real estate in this case) on the 17th day of each month.

(4) The contents of the above consultation are as follows: the real estate of this case, which is a building and site of the wedding hall, shall be owned by the above side - the plaintiff's share of the above side - the above side - the change shall be transferred to the future -, the change shall be made to the plaintiff's sole ownership of the plaintiff's real estate of the above parking lot No. 2. A, which is the above parking lot site, and its change - the share of the change - the change shall be transferred to the plaintiff in the future, and the above change - the ownership of the wedding hall was made to the plaintiff by the management right of the wedding hall in the above change - In response, the change and change of the real estate No. 2. B

(5) Following the above consultation, the registration of ownership transfer was completed for each of the real estate in this case and the shares in Section 2-A, or each of the real estate in the separate sheet, as seen earlier, and the permission of the above wedding hall was newly granted in the name of Section 2-A and Section 2 of the separate sheet. < Amended by Presidential Decree No. 14340, Jan. 12, 1994>

C. On the premise of the above facts, the defendant asserts that (1) the above change - the share of the above real estate was donated to the above change - and the above change - shall not be deemed to have been divided between the plaintiff and the above change -. (2) the mutual ownership transfer registration for each of the above shares was completed pursuant to the exchange contract between the plaintiff and the above change - the exchange of shares is actually conducted, and (3) the exchange of shares for different real estate is generally divided, but if the share of the common property is exchanged mutually as in this case, it is not divided, but the share is actually exchanged, and (4) if there is a difference between the share of the common property divided to each of the above real property and the initial share of the common property, it shall be deemed the transfer of the property, and (5) if the change in the name of the model - change is made to compensate for the difference in the value of the property exchanged in the future, the transfer of each of the above assets shall be deemed the transfer of the property subject to taxation for consideration.

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Although the form of exchange or sale is taken, the right, i.e., the right to be exercised limited according to the ratio corresponding to the share for the jointly owned property, which is the right to continue to exist only in the specific part acquired through the division, and its form of ownership is changed, and thus it cannot be deemed as the transfer of assets subject to capital gains tax at a cost (see Supreme Court Decision 91Nu9787 delivered on December 24, 191, etc.). The same applies not only to the case where one co-owned property is divided and exchanged as well as to the case where the share for each co-owned property is exchanged as a whole, and the share for each co-owned property is exchanged as a single co-owned property, and then the share for each co-owned property is converted as a separate ownership. Therefore, the above third argument by the defendant is without merit.

Furthermore, even if the common property as above is divided and the value of the portion divided is somewhat different from the value of the original share as a result of the division, there is no separate payment for the price following the difference, and the same applies unless there are special circumstances to recognize that the co-owners have different intent in addition to simply dividing the common property with the intent to co-owners. In this case, the difference between the Plaintiff and the above changed - as seen earlier is considerably different from the value of the above real property’s share. However, it is a problem arising from only considering the value of the above real property’s share, and it does not appear that there is a significant difference in the value of the above real property’s share in comparison with the total value of the transferred share. Moreover, since the transfer of the ownership of the business right is not paid for the difference in the value of the above real property’s share due to the division of the above real property, it is reasonable to view the ownership of the above changed land and the land of the above changed land as a whole to be automatically exchanged by the Plaintiff as a result of the division of the above real property’s share.

Therefore, the defendant's disposition of this case which imposed transfer income tax on the plaintiff's share of real estate as the transfer of ownership and the change of the name of the above wedding place business permission as the transfer of assets at a cost.

3. Conclusion

The plaintiff's claim seeking revocation by asserting the illegality of the taxation disposition of this case is reasonable, and this is accepted, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.