The following facts may be acknowledged in full view of the statements in Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 1, 4-2, Eul evidence Nos. 2-1, 2, 3, Eul evidence Nos. 3-1 through 6, and Eul evidence Nos. 5.

A. On February 28, 1991, the Plaintiff purchased 83,550,60 square meters from ○○○○○-dong ○○○○-dong 199.7 square meters (hereinafter “instant real estate”) from ○○○-dong ○○○-dong, ○○○-dong 1991, and paid all the purchase payments until April 29 of the same year, and completed the registration of ownership transfer on the instant real estate as of July 16, 1992.

B. After that, on February 15, 1993, the Plaintiff sold the instant real estate to the largest ○○ in KRW 100,000,000, and received full payment of the purchase price until March 10 of the same year, and completed the registration of ownership transfer on the instant real estate as of April 8 of the same year.

C. After transferring the instant real estate as above, the Plaintiff filed a preliminary return of capital gains tax with the head of ○○ Tax Office having jurisdiction over the Plaintiff’s domicile at the time of May 1, 1993 through a certified tax accountant. The Plaintiff reported the standard market price (gold KRW 1,100,000 per square meter) in 191 as the acquisition value, and reported that the standard market price in 1992 of the instant real estate (gold KRW 1,080,000 per square meter) was the transfer value, and reported that there was no capital gains tax on the transfer of the instant real estate. The head of ○○ Tax Office also recognized that the transfer income tax was not imposed on the Plaintiff. The Plaintiff believed that the issue of capital gains tax of this case was terminated.

D. Since the Board of Audit and Inspection conducted an audit at the beginning of 1995, the standard market price of the year 1991 for the real estate of this case was publicly announced on June 29 of the same year after March 10, 1991 when the plaintiff paid in full the purchase price of the real estate of this case, if the plaintiff acquired or transferred the real estate before the new standard market price of the year was publicly announced, then the acquisition price of the real estate of this case shall be based on the standard market price of the immediately preceding year (amended by Presidential Decree No. 14467 of Dec. 31, 1994) in accordance with Article 115 (6) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994), the acquisition price of the real estate of this case shall be based on the standard market price of the year 1990 (amount to 880,000 won per square meter), and thus, transfer income tax shall be imposed on the plaintiff.

2. Whether the instant disposition is lawful

A. The parties' assertion

First, as long as the actual acquisition value and transfer value of the real estate of this case can be clarified, the transfer income tax of this case should be calculated based on the actual market price rather than the standard market price, and considering the fact that the plaintiff acquired the real estate of this case through the combination and paid interest on such combination, the transfer of the real estate of this case does not have any actual income accrued to the plaintiff. Thus, the disposition of this case is unlawful. Second, even if the interest on the above combination is not considered, the transfer income tax of the plaintiff based on the actual transaction price of the plaintiff is merely 8,474,80 won, and the above amount of transfer income tax of this case is in excess of the above amount. Third, even if the transfer income tax of this case cannot be calculated based on the standard market price, the transfer income tax of this case goes beyond the actual transfer gains, so the disposition of this case is unlawful within its scope, and fourth, even if the transfer income tax of this case is imposed on the plaintiff within the scope of the actual transfer gains, it cannot be assessed based on the standard market price of this case and the transfer value.

B. Determination

(1) Judgment on the plaintiff's first and second arguments

(A) Relevant statutes

Article 23 (1) 1 of the Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994; hereinafter the same) provides that income generated from the transfer of land or a building shall be one of the transfer income subject to the addition of transfer income tax in the current year. In such a case, Articles 23 (4) 1 and 45 (1) 1 (a) of the same Act provide that the transfer value and acquisition value, which is the basis for calculating transfer income, shall, in principle, be the standard market price at the time of transfer and acquisition of the relevant assets, and in such cases as prescribed by the Presidential Decree, it shall be based on the actual transaction price at the time of transfer and acquisition, and Article 170 (4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14083 of Dec. 31, 1993; hereinafter the same shall apply) provides that the actual transaction price at the time of acquisition and transfer by the transferor at the time of preliminary return or final return on transfer income under subparagraph 3.

(B) Determination

In determining the transfer income tax on the transfer of real estate of this case, each provision of Articles 23 and 45 (1) 1 of the Income Tax Act, and Article 170 (4) of the Enforcement Decree of the same Act declares that the transfer margin was converted from the previous actual transaction price principle to the standard market price principle. Thus, in order to calculate the transfer income tax based on the actual transaction price under Article 170 (4) 3 of the Enforcement Decree of the same Act, the transferor of assets shall submit to the tax authority evidentiary documents which can confirm both the transfer and acquisition value at the time of making a preliminary return of transfer margin or a return of tax base confirmation, and in case where either of the evidential documents on transfer and acquisition value has not been submitted, it shall be calculated based on the standard market price even if the actual transaction price is confirmed, and it shall not be calculated based on the actual transaction price.

However, in this case, the plaintiff's own calculation and report of transfer margin on the basis of the standard market price (However, the plaintiff's wrong choice of the standard market price applicable thereto) has already been made, but there is no evidence to acknowledge that the plaintiff submitted evidentiary documents to confirm the actual transaction price at the time of the acquisition and transfer of the real estate in this case in the preliminary return of transfer margin. Thus, the acquisition value and transfer value, which is the basis of calculating the transfer income amount of this case, should be based on the standard market price rather than the actual transaction price. Therefore, it is legitimate for the defendant to calculate transfer margin on the basis of the actual transaction price. Thus, the plaintiff's first and second arguments on the premise that the transfer margin should be calculated on the basis of the actual transaction price, are without merit.

(2) Judgment on the plaintiff's third assertion

(A) Relevant statutes

Article 45 (1) 1 (proviso) of the Income Tax Act and Article 94 (1) 1 and Article 86 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14467 of Dec. 31, 1994) provide that "actual transaction price required for acquisition" shall be the value at the time of purchase (including registration tax, acquisition tax, and other incidental expenses).

(B) Facts and determination

In a case where transfer margin is calculated based on the standard market price, the tax amount calculated based on the standard market price cannot exceed the scope of transfer margin based on the actual transaction price under the principle of no taxation without law or prohibition of excessive taxation under the Constitution, and the tax amount calculated based on the standard market price here is the principal tax excluding the additional tax (see Supreme Court Decision 96Nu16964, Feb. 28, 1997). In the disposition of this case, the amount of principal tax excluding additional tax and additional tax is 14,012,584, the actual transfer value of the real estate of this case is 1,00,000 won, and the actual transfer value of the real estate of the plaintiff is 83,50,600 won, and the actual acquisition value is 83,59,9,100 won, 1000 won, 180 won, 1608 won, 1608 won, 4080 won, 5081,719,78168

On the other hand, even if the Plaintiff acquired the instant real estate through the occurrence of damages and paid interest thereon, such interest cannot be deemed to be included in the purchase price of the instant real estate itself, and it cannot be deemed to be an incidental expense required for the purchase of the instant real estate, and it shall not be considered in calculating the gains from the actual transfer.

(3) Judgment on the plaintiff's fourth argument

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of tax claims, administrative sanctions are imposed as prescribed by individual tax laws in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds. Such sanctions cannot be imposed in cases where there are justifiable grounds for failure to perform his obligations, such as where a taxpayer is reasonably unable to know his/her obligations, or where it is unreasonable to expect the party concerned to fulfill his/her obligations, etc. (see Supreme Court Decision 95Nu10181, Nov. 14, 1995). As seen in the above Paragraph (1), since the Plaintiff paid the purchase price of the real estate in full, it is unreasonable for the Plaintiff to report the acquisition price of the real estate in 1991 as the standard market price for the year 199, and the head of ○○ Tax Office did not impose any transfer income tax on the Plaintiff by recognizing that the Plaintiff’s obligation to pay the transfer income tax on the basis of the standard market price for the year 190 years thereafter.

3. Conclusion

Thus, the defendant's disposition of this case is legitimate only for the above 11,869,682 won, and the exceeding part shall be revoked in an unlawful manner. The plaintiff's claim shall be accepted only for the reasons exceeding the above 11,869,682 won, and the remainder shall be dismissed as it is without merit. It is so decided as per Disposition by applying Article 8 (2) of the Administrative Litigation Act, Articles 89 and 92 of the Civil Procedure Act to the burden of litigation costs.

January 8, 1998