2. The Defendant’s disposition of imposition of capital gains tax of KRW 49,618,910 against the Plaintiff on January 5, 1998 shall be revoked.

3. The costs of the lawsuit shall be borne by all the defendants together with the first and second instances.

The following facts are acknowledged in accordance with the respective descriptions of Gap evidence 1, Eul evidence 1 to 7, Eul evidence 1-1 to 7, 2, and 3-1 to 6, 4-1, 2, 3, Eul evidence 5 and 6, and all the arguments.

A. On September 30, 1994, the Plaintiff acquired a large of 102 square meters (hereinafter “instant land”) 304 square meters (hereinafter “the instant land”). On that ground, the Plaintiff newly constructed a cement brick, a brick, a three-story neighborhood living facilities, and a one-story reading room for 161.31 square meters, a two-story reading room for 161.31 square meters, a three-story housing, and a 137.91 square meters (hereinafter “the instant building”) on March 15, 1995, and transferred the instant land and buildings to the non-party Dog on April 30, 1995.

B. On June 12, 198,500 won (land 55,200,000, building 65,898,500 won), and the actual transaction value at the time of transfer is 112,00,000 won for the preliminary return of transfer margin that there is no transfer margin, without distinguishing the land and buildings of this case from the Defendant, the Plaintiff submitted each sales contract as evidence of the actual transaction value at the time of transfer of the land and buildings of this case, and failed to submit documentary evidence of the actual transaction value at the time of acquisition and transfer of the building of this case.

C. Accordingly, the Defendant directly investigated the actual transaction price at the time of the acquisition and transfer of the instant land and buildings on the ground that there is no ice evidence regarding the documentary evidence, such as the sales contract, submitted by the Plaintiff at the time of the said preliminary return. As a result, the actual transaction price at the time of the transfer of the instant land and buildings was confirmed to be KRW 255,00,000, but the actual transaction price at the time of the acquisition of the instant land was not verified at the time of the acquisition of the instant building, but the said actual transaction price at the time of the said investigation and verification (the actual transaction price at the time of the transfer of the instant land was calculated by means of dividing and calculating according to the standard market price of the land and building), and on the basis of the computation of gains on transfer based on the standard market price for the instant building, the Defendant imposed and notified the Plaintiff of KRW 1,909,720, the amount of capital gains tax reverted to the Plaintiff

D. After that, in the course of handling the written petition submitted by Kim Tae, a transferee of the instant land and building, to the Defendant, the Defendant revealed that the actual transaction price at the time of transfer of the instant land and building was KRW 420,00,000,000, based on the actual transaction price as seen earlier on January 5, 1998, the transfer value according to the actual transaction price is KRW 196,00,350, and the acquisition value is KRW 119,60,000. As to the instant land, the instant disposition was taken to impose and notify the Plaintiff of the transfer income tax calculated based on the standard market price as to the instant building.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

As the plaintiff made the preliminary return on the transfer margin of the land and buildings of this case to the defendant, in such a case, if the actual transaction price reported by the plaintiff is not confirmed by the transaction evidence submitted by the plaintiff, the defendant should return to the principle of assessment of the standard market price if the calculation of the transfer margin of the land and buildings of this case should be based on the standard market price. However, the defendant confirmed the actual transaction price at the time of the acquisition and transfer of the land of this case by using the method of investigation in his own name, and calculated the transfer margin of the land of this case on the basis thereof. In light of the provisions or purport of related

B. Relevant statutes

Articles 23(4)1 and 45(1)1 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same shall apply) provide that the transfer value and acquisition value in calculating transfer income accruing from the transfer of assets shall, in principle, be based on the standard market price at the time of transfer and acquisition of such assets: Provided, That only in such cases as prescribed by the Presidential Decree, the actual transaction price shall be based. Article 170(1) of the Enforcement Decree of the same Act (amended by the Presidential Decree No. 14860, Dec. 30, 1995) provides that in determining transfer margin provided for in Article 23(2) of the same Act based on the actual transaction price, the transfer value or acquisition value shall be determined based on one of the actual transaction price, and where one is determined based on the standard market price, the transfer value and acquisition value shall be determined based on the standard market price at the time of the transfer. Article 8 of the Addenda of the same Act shall be excluded from the actual transaction price at the same time of transfer.

C. Determination

Therefore, in the event that the actual transaction price reported by the Plaintiff with respect to the land of this case cannot be confirmed by the transaction evidence, etc., the tax authority should calculate the transfer margin based on the standard market price or the actual transaction price so that it can calculate the transfer margin based on the investigation and verification, and in light of the purport of the relevant Acts and subordinate statutes which declare the taxation principle based on the standard market price in the calculation of the transfer income tax, and stipulate the exceptional provisions that allow the calculation based on the actual transaction price based on the consideration of the tax balance and the aspect of the substance over form principle, the above exceptional provisions should be strictly interpreted. Therefore, the provisions of Article 166(4)3 and (5)2 of the Decree, even if the actual transaction price was reported by the Plaintiff, the tax authority should calculate the transfer margin based on the transfer margin and the acquisition price of the land which was reported by the said taxpayer, and if there is no such report or evidentiary documents submitted by the taxpayer, it cannot be deemed that the actual transaction price should be determined based on the standard market price, unless the actual transaction price is determined by the taxpayer or evidence.

In this case, the defendant asserts that the defendant may calculate gains from transfer on the basis of the investigation and confirmation of the actual transaction price at the time of the acquisition or transfer of the land of this case directly by the defendant under the related Acts and subordinate statutes, such as Article 166 (4) 1 of the Decree, since the plaintiff transferred the land of this case for the purpose of short-swing profits within one year after the acquisition of the land of this case. Thus, in light of the purpose and circumstance of the acquisition of the land of this case to be used as the new site of the building of this case, which is recognized by the testimony of the former state by the witness at the trial, the purpose and circumstance of the acquisition of the land of this case to be used as the new site of the building of this case, the new construction of the building of this case to escape from the interest burden, and the transfer situation of the land of this case and the building of this case, it is difficult to recognize that the land of this case was transferred within one year after the acquisition of the land of this case, and

(d) Whether it is possible to compute the justifiable amount of tax;

With respect to the land and buildings of this case, the transfer income tax amount shall be calculated on the basis of the standard market price. Accordingly, when calculating the transfer losses of KRW 5,321,396 according to the standard market price, the transfer losses of KRW 5,321,396 are recognized only by the data existing in the pleadings of this case, and it is inevitable to calculate the reasonable tax amount because any data on the standard market price of the land of this case is not revealed, so the entire disposition of this case is to be revoked (in light of the fact that the transfer losses occurred in the building of this case, it shall not be considered that the transfer losses occur if calculating based on the standard market price in accordance with the building of this case)

3. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is justified, and the judgment of the court below is unfair with different conclusions, and thus it is revoked the judgment of the court below and accepted the plaintiff's claim, and it is so decided as per Disposition by applying Article 8 of the Administrative Litigation Act, Articles 96 and 89 of the Civil Procedure Act to the burden of litigation costs.

Judges Park Tae-ho (Presiding Judge)