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

The Defendant’s disposition of correction of KRW 000 capital gains tax against the Plaintiff on January 8, 2010 shall be revoked.

In full view of the overall purport of the pleadings, the following facts are recognized in each entry of Gap evidence 1 to 4, and Eul evidence 1 to 3.

[1]

O The Plaintiff acquired the land from January 1, 1985 to December 1, 1986, such as the OOdong 00 and the same 000 land, and the same 000 land (hereinafter referred to as the “instant land”).

O) After that, around June 198, the Plaintiff had built a reinforced concrete building and a warehouse building on the first and fourth underground floor, acquired it, and leased it (hereinafter referred to as the “instant building”) on the instant land with YY around June 198.

O) On October 7, 2005, the Plaintiff entered into a sales contract with MM housing Co., Ltd. (hereinafter referred to as 'non-party company'), and at the time, the real estate sales contract (Evidence A 2-2) entered into between the subject matter of the sale and purchase in this case and the purchase price, and the due date for the remainder payment, written on October 25, 2005 (hereinafter referred to as 'the above sales contract').

O In the instant sales contract, and the apartment construction project by purchasing the instant land by the non-party company

In order to promote the above apartment construction project, the plaintiff provided all documents necessary for the establishment of district unit planning and approval of the project, and the building in this case is removed from the plaintiff's responsibility until March 30, 2006, and the plaintiff received 00 won from the non-party company when the removal is completed, and the non-party company can arbitrarily remove the building in this case, and the plaintiff agreed to cooperate with it.

(O) Around March 30, 2006, approximately six months after the date of the conclusion of the instant sales contract, the instant building was removed, and the non-party company newly built the 'OOO' apartment building on the instant land with the approval of the housing construction project on July 11, 2006.

[2]

C. On December 7, 2005, the Plaintiff reported and paid KRW 000,000 as the total of the acquisition value of the land of this case and the estimated deduction amount by the standard market price, and KRW 000 as the transfer income tax accordingly.

After O that, on May 29, 2006, the Plaintiff made a final report on tax base of transfer income, and on the grounds that the instant land was transferred under the condition to remove the instant building, the acquisition price of the instant building based on the standard market price, the total of KRW 000 and the estimated deduction amount of KRW 000 based on the standard market price were deducted as necessary expenses, and reported capital gains tax of KRW 000.

[3]

O The plaintiff requested the defendant at the time of the above final return, and among the tax amount paid at the time of the above final return, 000 won exceeding the tax amount equivalent to the above final return, and the defendant rejected it.

Around March 2007, the Plaintiff filed a lawsuit against the Republic of Korea for payment of the above excess amount of KRW 000,000 in Seoul Central District Court Decision 000O00, and Supreme Court Decision 2008Da38820 on December 2008, and the first preliminary return filed by the Plaintiff was integrated into the final return and extinguished in the final return, and the Plaintiff’s obligation to pay capital gains tax became final and conclusive by the final return.

O Around April 2009, the Seoul High Court Decision 000O0000 that was reversed and remanded by the above Supreme Court decision, and the Republic of Korea ordered the Plaintiff to pay the above excess amount of KRW 000 and its delay damages. This decision became final and conclusive around May 2009.

O Around June 2009, the defendant paid to the plaintiff all the amount ordered to pay in the above final judgment.

[4]

O After that, on January 8, 2010, the Defendant imposed a disposition of KRW 000 on the Plaintiff, KRW 000, and KRW 000,000 for additional additional tax on default (hereinafter referred to as the “instant disposition”).

(O) The instant disposition was that, at the time of the said final return, the Plaintiff’s calculation of the acquisition value of the instant building based on the standard market price at the time of the said final return and the estimated deduction amount by adding 00 won to the necessary expenses is not permissible, and the transfer income tax to be paid by the Plaintiff was corrected to 00 won as the said preliminary return, and

2. Necessary expenses;

A. The plaintiff's assertion

The Plaintiff agreed to remove the instant building while transferring the instant land to the Nonparty Company, and the transfer value of the instant building is zero won. In addition, the Plaintiff was seeking to remove the instant building and use the instant land as a new site for apartment construction. Therefore, it is justifiable that the Plaintiff deducted the total acquisition value of the instant building and the estimated deduction amount based on the standard market price at the time of the final return as above from the necessary expenses, and the part that did not recognize the said additional deduction among the instant disposition is unlawful.

B. Determination

(1) On October 7, 2005, the Plaintiff entered into the instant sales contract with the non-party company, and at the time, the real estate sales contract (Evidence A No. 2-2) entered into with the non-party company stated the subject matter of the instant sales contract as of October 25, 2005, the land and the sale price of the instant building, and the remaining payment date. In addition, the instant sales contract entered the instant building into the sales contract as of October 25, 2005, and the Plaintiff removed the instant building at the Plaintiff’s responsibility until March 30, 2006, and the Plaintiff paid KRW 00 to the non-party company when the removal was completed, and the non-party company did not arbitrarily remove the instant building, and the Plaintiff agreed to cooperate with it. Accordingly, the Plaintiff transferred the instant land to the non-party company according to the instant sales contract, and the instant building is to be removed and demolished, and the Plaintiff does not transfer the instant building to the non-party company. Therefore, the Plaintiff cannot be deemed the transfer price of the instant building.

(2) According to the Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005, hereinafter the same), when the Plaintiff transferred the instant land to a non-party company, the amount of transfer income is calculated by deducting the special long-term holding deduction amount from the transfer value after deducting necessary expenses (Article 95), and the necessary expenses to be deducted from the transfer value as above are prescribed by the Presidential Decree (Article 97), such as (a) acquisition value, (b) capital expenditure, etc., as prescribed by the Presidential Decree, and (c) transfer expense (Article 97). According to the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005, hereinafter the same), the above capital expenditure, etc. are expenses, etc. paid for the change, improvement or convenience of use of transferred assets (Article 163(3)), and the above transfer expense, etc. is directly paid to transfer assets (Article 163(5)).

(3) If it is evident that the acquisition of land and buildings, such as the removal of the building in order to use the land and buildings together with the land and the building on the ground, and the commencement of the removal of the building within a short time after the acquisition, was intended to only use the land from the beginning to December 198, they may be included in the necessary expenses of the transferred asset included in the acquisition value of the land, and in the case of the acquisition of the building site on the old ground, the purchase price and the cost of the removal of the building on the ground shall be deducted as necessary expenses (Supreme Court Decision 92Nu7399 delivered on September 8, 1992). However, according to the above, the Plaintiff acquired the land between January 1, 1985 to December 198, 198, and the sales contract of this case was concluded to lease the building on the land of this case to the company of this case after the removal of the building of this case. < Amended by Presidential Decree No. 10680, Jul. 17, 1977>

According to these circumstances, the plaintiff acquired the land of this case and then acquired the land of this case.

By constructing a new building, the Plaintiff used the instant land for its original purpose and transferred the instant land to Nonparty Company. Accordingly, the Plaintiff did not acquire the instant land and the instant building solely for the purpose of using only the instant land, and it is not deemed evident that the Plaintiff’s acquisition of the instant land and the instant building was for the purpose of removing the instant building from the beginning to the end and using only the instant land, such as commencing the removal of the instant building within a short time after the acquisition of the instant land, and it does not constitute an obvious fact that the Plaintiff’s acquisition of the instant land and the instant building was for the purpose of using only the instant land. Accordingly, the acquisition value or the removal cost of the instant building is not included in the acquisition value of the instant land, which is the transferred asset, and does not fall under the capital expenditure, which is the expense

(4) On the other hand, if the land owner transferred the above land to non-party 1 for the purpose of fulfilling its duty of delivery, it is inevitable for the non-party 1 to purchase and remove the building without permission, regardless of its own will, and the cost of the removal shall be considered as the cost of removal, and in particular, the cost of removal shall not be considered as the cost of removal of the building for the convenience of land use, and the cost of the removal shall not be included in the cost of the removal of the building for the purpose of using only the land (Supreme Court Decision 92Nu15871 delivered on March 11, 198), and the cost of the removal of the building for the purpose of the removal by the non-party 1 to the non-party 1 to the non-party 1 for the purpose of removing the building in question, and the cost of the removal by the non-party 2 to the non-party 1 for the purpose of removing the building in question, and the cost of the removal by the plaintiff to the non-party 1 for the purpose of the removal.

(5) As seen earlier, the Plaintiff reported and paid 00 won of capital gains tax based on the standard market price and the estimated deduction amount of the land of this case with the transfer value of the instant land based on the standard market price, and thereafter, filed a final return on the tax base of capital gains tax, and filed a return on 000 won of capital gains tax by deducting 000 won of the acquisition value of the instant building and the estimated deduction amount based on the standard market price from the necessary expenses. However, as seen earlier, the acquisition value or removal expenses of the instant building do not constitute the acquisition value or capital expenditure or transfer expenses of the instant land, which is the transferred asset, and it is not permissible for the Plaintiff to additionally deduct 00 won of the acquisition value and estimated deduction amount of the instant building based on the standard market price at the time of the said final return. Accordingly, the Plaintiff’s assertion that the aforementioned additional deduction in the instant disposition was unlawful is without merit.

3. Additional tax.

A. The plaintiff's assertion

The Plaintiff reported and paid KRW 000 as at the time of the preliminary return on the tax base of transfer income, and the instant disposition is to rectify the transfer income tax amount of KRW 000 as at the time the Plaintiff filed the final return on the tax base of transfer income to KRW 000,000 as at the time of the final return on the tax base of transfer income. However, in such cases, since no penalty tax is imposed pursuant to Article 115

B. Determination

Article 115 (1) and (2) of the Income Tax Act, and Article 115 (1) and (2) of the same Act, when a resident fails to make a final return or makes a return on the income amount to be returned, the additional tax on negligent payment shall be imposed, and when the resident who is liable to make a final return fails to make a return or makes a return on the tax amount below the tax amount to be paid, the additional tax on negligent payment shall be imposed. On the other hand, Article 115 (3) of the Income Tax Act provides that where there is no tax amount to be paid by the head of a tax office or the director of a regional tax office due to the determination and correction of the tax base, the additional tax on negligent payment shall not be imposed. However, according to the above provision, the Plaintiff filed a lawsuit against the Republic of Korea for the payment of 00 won difference at the time of the final return, and then filed a lawsuit for the payment of 000 won, which is the difference between the transfer income tax and the tax amount to be paid at the time of the above final return, and the additional tax shall not be paid by the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.