Article 89 (Non-Taxable Transfer Income Tax)

2. The costs of lawsuit shall be borne by the Plaintiff.

가. 원고는 2005. 2. 11. 서울 ○○구 ○○동 ○○ ○○○○팰리스 C동 3605호(이하, '이 사건 아파트'라고 한다)를 8억 1,530만원에 취득한 후 2006. 1. 16. 정○진에게 은행채무 2억 7,000만원과 전세보증금반환채무 6억 5,000만원의 합계액 9억 2,000만원의 채무를 인수하는 조건으로 이 사건 아파트를 증여하였다.

B. On February 28, 2006, the Plaintiff calculated capital gains by multiplying the standard market price at the time of the transfer of the apartment house in this case (1,062,987,164 won) by the ratio of the amount of debt (1,225,00,000 won at the time of the onerous donation) among the amount of donation amount (1,225,000 won at the time of the onerous donation). The acquisition value shall be calculated by multiplying the standard market price at the time of the acquisition by the ratio of the amount of debt from among the amount of donation amount of the same amount of donation amount of KRW 1,026,00,000 at the time of the acquisition. The Plaintiff reported and paid KRW 1,082,210 as capital gains tax for the year of 206.

C. On April 10, 2006, the Plaintiff corrected the capital gains tax amounting to KRW 1,082,210, which was initially reported and paid as KRW 972,760, and filed a claim for correction to refund KRW 109,450, which is the difference, to the Defendant.

D. However, on October 9, 2006, the defendant calculated the transfer margin by the "amount calculated by multiplying the actual transaction value at the time of acquisition by the ratio of the amount of the obligation (the acquisition amount of KRW 92 million) out of the donation amount at the actual transaction value at the time of acquisition (the acquisition amount of KRW 815,300,000)" and then corrected and notified that the transfer margin should be additionally paid KRW 139,835,860 as the transfer income tax for the year 2006 after calculating the transfer margin.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1-1-2, Eul evidence 1-4 and the purport of whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In the case of onerous donation of the real estate whose transfer value should be the actual transaction value, the transfer value of the relevant asset cannot be recognized or confirmed at the time of its transfer, and thus, it cannot be determined by the standard market price pursuant to Article 114(5) of the Income Tax Act. Therefore, the transfer value of the part to be deemed a transfer among the apartment of this case shall be the amount obtained by multiplying the standard market price at the time of donation by the ratio of the amount of the debt out of the amount of the donation amount at the time of donation, and the acquisition value shall be the amount obtained by multiplying the standard market price at the time of acquisition by the ratio of the amount of the debt out of the amount of the donation amount at the time of donation.

(b) Related statutes;

Article 88 (Definition of Transfer)

Article 89 (Non-Taxable Transfer Income Tax)

Article 96 (Transfer Price)

Article 97 (Calculation of Necessary Expenses for Transfer Income Tax)

Article 99 (Calculation of Standard Market Price)

Article 100 (Calculation of Gains on Transfer)

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

Article 163 (Necessary Expenses for Transferred Assets)

Article 159 (Calculation of Gains on Transfer of Onerous Donation)

Article 176-2 (Estimated Decision and Revision)

C. Determination

(1) Article 159 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008; hereinafter “former Enforcement Decree of the Income Tax Act”) delegated by Article 100(3) of the former Income Tax Act (amended by Presidential Decree No. 8144, Dec. 30, 2006; hereinafter “former Income Tax Act”) which was enforced at the time of onerous donation of apartment houses. Article 159 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 2, 2008; hereinafter “former Enforcement Decree of the Income Tax Act”) provides that the acquisition value and transfer value of the relevant apartment house shall be calculated by multiplying the value of the relevant asset under Articles 96 and 97(1)1 of the former Income Tax Act by the ratio of the amount equivalent to the amount of debt to the actual transaction value at the time of onerous donation. It is difficult to view that the actual transaction value of the apartment house is 200.

(2) Article 14(5) of the former Income Tax Act and Article 176-2(1) and (3) of the former Income Tax Act provide that where the transfer value is based on the actual transaction value and it is impossible to recognize or confirm the actual transaction value due to such reasons as there is no documentary evidence, the transfer value shall be based on the transaction example, appraisal value, conversion value or standard market value in consecutive order. Article 100(1) of the former Income Tax Act provides that where the transfer value is based on the actual transaction value, the transfer value under Article 114(5) of the former Income Tax Act shall be deemed to be included in the actual transaction value. In full view of the above provisions, the transfer value of the portion to be considered as 00,000 won shall be based on the transaction value, appraisal value, conversion value or standard market value at the time of acquisition, 200,000 won which is calculated by multiplying the actual transaction value at the time of acquisition by 1 million won, 200,000 won which is calculated by the actual transaction value at the time of apartment house at that time of acquisition.

(3) If so, the defendant's disposition of this case is legitimate, and the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of this case cannot be accepted, and it is dismissed.