2. The plaintiff shall bear the total costs of the lawsuit after filing the appeal.

The imposition of the capital gains tax belonging to the year 2008 against the plaintiff on June 17, 2010 by the defendant shall be revoked.

On June 17, 2010, the Plaintiff sought revocation of the disposition of imposition of OOOO of transfer income tax for the year 2008 against the Plaintiff, and the first instance court rendered a decision to dismiss the Plaintiff’s claim. The first instance court rendered a judgment to dismiss the Plaintiff’s appeal, prior to remanding the Plaintiff’s appeal, revoked the part of the judgment against the Plaintiff falling under the part of the order to revoke the portion exceeding the OOOO (the portion of the tax amount corresponding to the transfer value of house and equipment) among the first instance court’s disposition of capital gains tax, and dismissed the Plaintiff’s remaining appeal. The Plaintiff and the Defendant’s appeal revoked the part of the judgment against the Defendant, prior to remanding, and the judgment to remand this part of the case,

Therefore, the part of the imposition of the capital gains tax for the year 2008 is finalized, and the scope of the judgment of this court is limited to the claim for cancellation of the part exceeding the capital gains tax for the above imposition.

2. Correction and notification of capital gains tax and the progress of litigation;

The following facts are not disputed between the parties, or may be acknowledged by comprehensively taking into account the overall purport of the pleadings as set forth in Gap evidence 1 to 4, 11 to 14, and Eul evidence 1 to 5 (including paper numbers):

[1]

On November 15, 2003, the plaintiff and its wife, SongB (hereinafter referred to as "the plaintiff, etc.") acquired 1/2 shares of the OO-dong 176-9 land and the above-ground buildings (hereinafter referred to as "the aggregate of the above two real estates") from the KimCC, and acquired O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O

○ The Plaintiff, etc. used the instant land as a parking lot for the instant telecom, and transferred the instant telecom and the instant land to differentGG on July 10, 2008.

[2]

On July 23, 2008, the Plaintiff, etc. reported and paid to the Defendant the transfer value of the instant franchise ( separate between the acquisition value of house and equipment) and the transfer value of the instant land as the OOO(Plaintiff OOO and SongB OO) calculated by using the transfer value of the instant land as the OOO.

In regard to this, the Defendant, even though the Plaintiff et al. transferred the instant model and the instant land to OOOOG en bloc, separately calculated the transfer value by asset type, and on the ground that the office, etc., arbitrarily calculated the transfer price of OOOO won on the ground that the transaction was ordinarily conducted including the real estate price at the time of the transaction of real estate for business purpose, even though the transaction was conducted including the real estate price at the time of the transaction of real estate, the office, etc. was arbitrarily assessed and notified the Plaintiff on June 17, 2010 by calculating the transfer price pursuant to Article 100(2) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same shall apply).

[3]

○ The Plaintiff filed a lawsuit seeking revocation of the disposition imposing capital gains tax as Seoul Administrative Court Decision 201-Gu 8195, and sentenced to dismissal judgment. The Plaintiff appealed as Seoul Administrative Court Decision 2011Nu31439 and rendered a judgment of the first instance court against the Plaintiff, which constitutes the part of the order to revoke the above disposition imposing capital gains tax in excess of the OOO(OOOO's transfer value of house and equipment). The Plaintiff and the Defendant appealed as Supreme Court Decision 2012Du22119.

Therefore, the Supreme Court rejected the Plaintiff’s assertion that the transfer value of the house and equipment should be deducted from the transfer value of the apartment prior to remand. However, each sales contract on the apartment apartment and the land of this case is merely the form prepared to avoid transfer income tax, and it is highly probable that each transfer of the apartment and the land of this case can not be separated from the transfer value in accordance with each sales contract. However, the apartment apartment and the land of this case can be divided into transfer value in accordance with each sales contract, and thus, the disposition of this case was unlawful prior to remand, which concluded that the disposition of this case’s transfer income tax was unlawful, on the ground that the judgment of the court prior to remand failed to exhaust all necessary deliberation or it was erroneous in finding a fact contrary to logical and empirical rules on the division of transfer value, and thus remanded to this court by reversal of the part against the Defendant’s loss among the judgment of the court prior to remand (hereinafter Defendant’s disposition of this case’s transfer income tax on June 17, 2010).

3. The plaintiff's assertion

The Plaintiff et al. separately determined and transferred the transfer value at the time of the transfer of the instant telecom and the instant land as OOO members and OOO members, and thus does not constitute “when the distinction between the value of land, buildings, etc. under Article 100(2) of the former Income Tax Act is unclear” but the instant disposition otherwise reported is unlawful.

4. Determination

A. Relevant legal principles

In applying Article 100(2) of the former Income Tax Act, where the transfer price or acquisition price is calculated based on the actual transaction price and where the land, building, etc. are acquired or transferred at the same time, it shall be divided and entered, but if the distinction between the land and the building, etc. is unclear, it shall be calculated in accordance with the Presidential Decree in consideration of the standard market price at the time of acquisition or transfer. In applying Article 100(2) of the Income Tax Act, Article 166(6) of the Enforcement Decree of the Income Tax Act provides that where the distinction between the land and the building, etc. is unclear, it shall be calculated in accordance with the proviso of Article 48-2(4) of the Enforcement Decree of the Value-Added Tax Act. Article 48-2(4) proviso and 1 of the Enforcement Decree of the Value-Added Tax Act provides that where the distinction between the value of the land and the building, etc. is unclear among the actual transaction

Meanwhile, Article 14(2) of the Framework Act on National Taxes declares the principle of substantial taxation by requiring the application of the provisions on the calculation of tax base under tax-related Acts to the substance, irrespective of the name or form of transaction, regardless of its substance. As such, where a taxpayer takes an unreasonable form or appearance that differs from the substance with respect to the facts requiring taxation for the purpose of evading a tax burden, it shall be imposed according to the substance, notwithstanding the form or appearance (see, e.g., Supreme Court en banc Decision 2008Du8499, Jan. 19, 2012).

B. Determination

(1) The circumstances examined based on the overall purport of each of the above evidence are as follows.

∎ 변GG은 피고로부터 세무조사를 받을 당시 이 사건 모텔과 이 사건 토지를 총매매대금 OOOO원에 매수하기로 원고 등과 합의하고 원고 등에게 잔금을 지급하던 중 원고의 요청으로 이 사건 모텔과 이 사건 토지의 각 매매대금을 구분하여 매매계약서 2장을 작성하게 되었으나 그 매매대금의 산정내역은 잘 알지 못한다고 진술하였다. 이와 같이 매매계약상 매매조건이 정하여지고 이를 이행하다가 잔금을 지급하는 단계에서 굳이 실질적인 매매조건의 변경도 없이 매매대금을 구체적으로 나누어 정한다는 것은 비사업용 토지인 이 사건 토지의 양도소득에 대하여 높은 양도소득세율이 적용된다는 점에 착안한 조세회피의 목적에서 비롯된 것으로 볼 여지가 적지 아니하다.

∎ 이 사건 모텔과 이 사건 토지의 각 취득가액, 이 사건 모텔의 부지와 이 사건 토지의 각 개별공시지가의 변동추이, 보유기간 동안의 이 사건 모텔의 건물에 대한 감가상각 등을 종합적으로 고려해 볼 때, 이 사건 모텔에 관한 매매계약서상의 매매대금은 이 사건 토지에 관한 매매계약서상의 매매대금에 비하여 비정상적으로 높게 책정되었다고 봄이 상당함에도 그와 같이 비정상적으로 책정하게 된 객관적인 경위나 근거에 대한 합리적인 설명이 없다.

∎ 이 사건 토지에 관한 2008. 5. 27.자 매매계약서에는 매매대금이 OOOO원, 계약금 이 OOOO원, 계약금의 지급일이 2008. 5. 27.이라고 각 기재되어 있고, 이 사건 모텔에 관한 2008. 6. 15.자 매매계약서에는 매매대금이 OOOO원, 계약금이 OOOO원, 계약금의 지급일이 2008. 6. 15.이라고 각 기재되어 있는데, 변GG이 2008. 5. 27. 원고에게 지급한 돈은 OOOO원으로서 이 사건 토지에 관한 2008. 5. 27.자 매매계약서상의 계약금 OOOO원을 초과하고 오히려 나중에 작성된 이 사건 모텔에 관한 매매계약서상의 계약금 OOOO원을 합한 금액과 일치한다. 그리고 변GG이 이 사건 모텔의 1/2 지분권자인 송BB의 계좌에 송금한 금액은 OOOO원으로서 이 사건 모텔에 관한 매매계약서상의 매매대금 OOOO원의 1/2을 훨씬 초과한다. 이러한 사정들에 비추어 보더라도 위 각 매매계약서가 거래의 실질을 제대로 반영한 것으로 보는 것에는 강한 의문이 제기된다.

∎ 원고 등과 변GG은 부동산중개업소를 통하여 이 사건 모텔과 이 사건 토지에 관한 매매계약을 체결하였음에도 그 각 매매계약서에는 부동산중개인의 기명・날인 등 부동산중개인이 관여한 흔적이 전혀 없다는 점도 납득하기 어렵다.

(2) Examining the aforementioned circumstances in light of the legal principles as to the principle of substantial taxation as seen earlier, each sales contract on the instant telecom and the instant land is merely a form prepared to avoid capital gains tax, and its substance constitutes a case where each transfer value cannot be separated by transferring the instant telecom and the instant land to OO won en bloc. Accordingly, the Plaintiff’s assertion on a different premise is without merit.

5. Conclusion

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