Article 114 (Determination, Rectification and Notification of Transfer Income Tax Base and Tax Amount)

2. The costs of the lawsuit are assessed against the defendant.

In full view of the purport of the entire pleadings in the statements Nos. 1, 3 through 10, and Nos. 1, 2, and 1 and 2, multiple facts can be recognized.

A. On May 30, 2002, the Plaintiff transferred 2/1 equity (hereinafter “instant real estate”) out of 375-1 orchard 3,206 square meters, ○○○-dong 375-1, 206 square meters to the largest head of ○○○, and reported and paid KRW 507,190 on June 3, 2002, by setting the transfer value of KRW 250,000, acquisition value of KRW 232,50,000, transfer value of KRW 232,50,000, and transfer value of KRW 9,130,000 based on the actual transaction value.

B. Around 2007, the Defendant: (a) considered the actual transaction price as KRW 601,00,000; (b) calculated the transfer income tax again; (c) imposed KRW 161,877,350 on the Plaintiff on September 3, 2007; and (d) additionally imposed KRW 31,270,360 on the ground that the penalty tax was erroneously imposed on November 1, 2007 on the ground that the application of penalty tax was erroneous (hereinafter referred to as “instant disposition”).

2. Whether the disposition is proper; and

A. The plaintiff's principal

The transfer income tax at the time of selling the instant real estate was paid the amount calculated by applying the standard market price, and when calculating the standard market price, the Plaintiff did not have the obligation to pay the transfer income tax in connection with the transfer of the instant real estate. The Plaintiff reported the transfer income tax as the actual transaction price due to the error caused by the accounting company's wrong guidance, and even if the Plaintiff did not have the purpose of evading the tax burden, it is unlawful to apply the proviso of Article 114 (4) of the Income Tax

(b) Related statutes;

Article 96 (Value of Transfer)

Article 114 (Determination, Rectification and Notification of Transfer Income Tax Base and Tax Amount)

C. Determination

(1) Interpretation of the proviso of Article 114(4) of the former Income Tax Act

Article 96 of the former Income Tax Act provides that the transfer income tax shall be calculated based on the standard market price at the time of transfer of the relevant asset, in principle, based on the standard market price at the time of transfer of the relevant asset, and the actual transaction price at the time of transfer and acquisition pursuant to the proviso of Article 110 (1) shall be reported to the head of the tax office having jurisdiction over the place of tax payment by the deadline for the final return under the proviso of Article 110 (1). This provision provides that where certain assets are transferred in accordance with the standard market price principle and the actual transaction price at the time of transfer, the transfer income tax shall be calculated based on the standard market price no more than the actual transaction price so that the taxpayer can suffer any disadvantage than the actual transaction price (see, e.g., Supreme Court Decision 9Du727, Apr. 11, 200; Supreme Court Decision 9Du7837, Dec. 31, 2005).

Therefore, the plaintiff's assertion pointing this out is with merit.

(2) Calculation of transfer income tax following the transfer of real estate in this case;

The fact that the capital gains tax related to the transfer of real estate of this case is calculated based on the standard market price is zero won is not disputed between the parties. Therefore, the disposition of this case where the defendant imposed capital gains tax on the plaintiff, although there is no capital gains tax on the transfer of real estate of this case, is unlawful.

3. Conclusion

Thus, it is reasonable to revoke the disposition of this case as unlawful. Thus, the plaintiff's claim of this case is justified.