Article 95 (Transfer Income Amount)

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

가. 원고는 1997. 5. 26. 시흥시 ☆☆동 1593-2 대 342.1㎡(이하 '이 사건 토지'라 한다)를 엄★★과 함께 1/2 지분씩 취득하여(이하 원고의 1/2 지분을 '이 사건 지분'이라 한다), 1997. 6. 11. 소유권이전등기를 마치고 보유하다가, 2002. 8. 20. 최○○에게 이 사건 지분을 양도하고 2002. 10. 1. 최○○ 명의의 지분이전등기를 마쳤다.

B. On October 11, 2002 with respect to the transfer of the Plaintiff’s share, a preliminary return on the tax base of transfer income stating the transfer value of KRW 106,20,000, acquisition value of KRW 98,86,900, and other necessary expenses was submitted.

C. On October 5, 2007, the Defendant confirmed that the actual transfer value of the instant land was KRW 560,000,000 (the instant shares are KRW 280,000,000) in the course of the investigation into the largest ○○. Accordingly, the Defendant calculated capital gains tax according to the actual transaction price confirmed by the Plaintiff pursuant to the proviso of Article 114(4) of the former Income Tax Act (amended by Act No. 7837, Dec. 31, 2005; hereinafter the same) on the ground that the Plaintiff reported less than the actual transaction price confirmed by the Plaintiff, and imposed capital gains tax of KRW 80,156,080 for the Plaintiff on March 5, 2008 (hereinafter “instant disposition”).

D. On June 3, 2008, the Plaintiff filed an objection against the Defendant, but was dismissed on July 24, 2008. On October 20, 2008, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service, but dismissed on December 12, 2008.

[Reasons for Recognition: Facts without dispute, Gap 1, 2, 3 evidence, Eul 1-2 through 5, Eul 4, and 6; the purport of the whole pleadings]

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The preliminary return of tax base of transfer income on the instant shares (hereinafter “the return of this case”) did not have any fact that the Plaintiff prepared and submitted, or delegated to prepare and submit it. Since the broker had voluntarily requested a tax accountant office to prepare and submit it, the broker’s transfer value and acquisition value under the proviso of Article 114(4) of the former Income Tax Act are the case where the preliminary return of tax base of transfer income is made based on the actual transaction value, and the relevant return value does not fall under the case where the actual transaction value is different from the fact

(2) Even if the Plaintiff submitted the instant declaration, as a matter of principle, the instant land is subject to the standard market price and subject to the application of the standard market price. Thus, the proviso of Article 114(4) of the former Income Tax Act should be interpreted that the amount of tax calculated on the value verified as the actual market price does not exceed the amount of tax calculated based on the standard market price of the relevant asset. Thus, the instant disposition made in excess of the standard market price is unlawful.

(b) Related Acts;

It is as shown in the attached Form.

C. Determination

(1) Whether the Plaintiff delegated the preparation and submission of the instant report

In full view of the purport of each statement in Eul evidence Nos. 1 through 5, Eul evidence No. 1-2, Eul evidence No. 5, and Eul evidence No. 5, the following facts are as follows: (i) seal of the plaintiff's name is affixed to the report of this case; (ii) real estate sales contract, real estate verification contract, certificate of real estate transactions, and certificate of the plaintiff's seal impression affixed to the plaintiff's seal imprint; (iii) real estate transfer price of this case is KRW 560,000; (iv) the plaintiff entered the real estate transfer price certificate in the real estate transfer price certificate as KRW 20,000; and (v) the purchase price for the land of this case is 212,40,000,000 (value of the share of this case, KRW 106,200,000,000, which are attached to the report of this case; and (v) the plaintiff's assertion that the sale price of this case is 20,000,00 won.

(2) Whether the transfer income tax amount on the land of this case is in excess of the tax amount calculated at the standard market price

In interpreting the proviso of Article 114(4) of the former Income Tax Act, where the transferor has made a preliminary return of tax base of transfer income and the tax authority confirms the actual transaction price different from the fact, the confirmed value shall be based on the actual transaction price, but it shall be interpreted that the transfer income tax calculated by the confirmed value does not exceed the transfer income tax calculated by the standard market price. In the past, even if the actual transaction price is confirmed by investigation by the tax authority after the taxpayer transferred real estate and made a preliminary return or final return of tax base of transfer income based on the actual transaction price different from the fact, the taxpayer can again pay the transfer income tax according to the standard market price. Accordingly, even if the actual transaction price is confirmed by the investigation by the tax authority after the false return, the awareness that the tax amount calculated by the standard market price should be paid. Such moral hazard and unfair assessment are immediately made by the tax authority with the transfer value or acquisition value verified, and thus the proviso of Article 114(4) of the former Income Tax Act is newly established to correct the transfer income tax and tax amount. Therefore, if the tax authority confirms the actual transaction price under the above proviso, it should not exceed the basis.

Therefore, in the case where the tax authority confirms the actual transaction price, the disposition of this case imposing the transfer income tax calculated on the confirmed value is legitimate, and the plaintiff's assertion that the transfer income tax on the land of this case cannot exceed the amount of tax based on the standard market

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.