[양도소득세부과처분취소청구사건][고집1983(형사특별편),385]
In cases where a building site and ground building are purchased together, and a building is demolished and transferred after new construction within a period of time, whether the acquisition value and removal cost of the building of the Gu are included in the acquisition value of the building site.
Where a building is purchased to use the site together to remove the ground building within a period of time, and a building is newly constructed and transferred to another place, the acquisition value of the building of the Gu or the expenses incurred in the removal thereof shall be included in the acquisition value of the building site.
Article 45 (1) of the Income Tax Act
May 15, 1984, 83Nu470 decided May 15, 198 (Gong7329)
Plaintiff
The Director of the Korean Tax Office
The portion exceeding 18,247,832 won in the disposition of imposition of capital gains tax of 21,623,598 against the plaintiff as of October 24, 1981 shall be revoked.
The plaintiff's remaining claims are dismissed.
The litigation costs shall be divided into two parts, one of them shall be borne by the plaintiff and the other by the defendant.
Of the disposition imposing capital gains tax of KRW 21,623,598 against the Plaintiff as of October 24, 1981, the part exceeding KRW 15,327,759 shall be revoked.
The judgment that the lawsuit costs shall be borne by the defendant.
The defendant assessed the transfer income tax rate of 21,623,598 on October 24, 198 to the plaintiff 2, 198, and the tax rate of 200 won No. 8,200, Eul evidence No. 9-2, Eul evidence No. 3, Eul evidence No. 5, and Eul evidence No. 5 (pre-determined No. 4, No. 97, No. 97, No. 1984) on each of the above facts stated above on the 10th 7th 7th 1, 197. The transfer price of the building was 0,000 won, and the transfer price was 10,000 won and 4th 7th 7th 1,000,000 won were 0,000 won and 10th 7th 1,000 won were 60,000 won and thus, it was 18th 1,1971.
The plaintiff's attorney at the time of purchasing the site of this case from the Hong kmenn, the plaintiff purchased the building at around May of the same year and 52.02 square meters (hereinafter "the building of this case") on the ground of the time when he purchased the building of this case from the non-party Hong kmenn, and then constructed the building of this case on the ground of the same year, constructed the building of this case before the plaintiff on November 11 of the same year, and transferred the building of this case to the non-party 1 on August 11, 1980. In calculating the gains on transfer from this transfer, the plaintiff argued that the value of the building of this case purchased by the plaintiff at the market price at the time of the purchase of the building of this case and its removal expenses are necessary expenses of the building of this case, and the defendant purchased the building of this case from the non-party 6-1 and 2 (each of the non-party 3's house ledgers), and the plaintiff's testimony to the non-party 1 and 5-2's testimony of this case.
However, according to Article 45 (1) of the Income Tax Act, where the actual transaction price required to acquire the pertinent asset or its actual transaction price is unclear as one of the necessary expenses to be deducted in calculating gains from transfer, the amount at the market price at the time of the acquisition of the pertinent asset is stipulated. According to the above facts of recognition, since it is apparent that the Plaintiff purchased the instant building to use the instant building site and demolished the instant building within one period, and newly constructed the instant building, it is reasonable to interpret that the acquisition price of the previous building or the cost required to remove the building should be included in the acquisition price of the instant building site. Since the Plaintiff did not dispute between the parties, the acquisition price shall be 3,443,724 won (6,205.02.00 won) at the time of the acquisition of the former building, the sum of the acquisition price at the market price at the time of the Plaintiff’s acquisition price at 66,200,000 won and the price at 40,000 won at the time of the instant building site is 5.3 billion won.
Furthermore, based on this, if the capital gains tax for the above transfer is calculated, it will be 18,247,832 won, such as the statement in the tax invoice of the corresponding tax amount.
Therefore, the part exceeding KRW 18,247,832 among the disposition of imposition of capital gains tax of KRW 21,623,598 against the plaintiff as of October 24, 1981 against the plaintiff should be revoked as unlawful. Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed as without merit. It is so decided as per Disposition by the application of Article 14 of the Administrative Litigation Act, Articles 89, and 92 of the Civil Procedure Act as to the cost of lawsuit.
Judges Yoon Sang-ho (Presiding Judge)