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

Each taxation of KRW 17,794,228 of corporate tax for the business year 1999 and KRW 16,682,089 of special surtax for the business year of June 7, 2004 (the Plaintiff’s claim for the above portion was reduced in the trial) and KRW 1,802,573 of corporate tax for the business year 200, and KRW 1,689,912 of special surtax for the business year of April 1, 2003, and KRW 35,80,000 of earned income for the business year of 201 as of June 7, 2004 shall be revoked, respectively.

2. Purport of appeal

Among the judgment of the first instance court, the part against the defendant shall be revoked, and the plaintiff's claim against the above revocation shall be dismissed.

The plaintiff filed the lawsuit of this case against the plaintiff on June 7, 2004 regarding the cancellation of the tax disposition of KRW 21,542,153 of corporate tax and KRW 20,195,767 of special surtax for the business year 1999, and KRW 1,802,573 of corporate tax for the business year 200, and KRW 1,689,912 of special surtax for the business year 1,689, and KRW 35,800 of earned income tax for the business year 2004, and KRW 35,800,000 of special surtax for the business year 35,80,000 of corporate tax for the business year 1999, the court of first instance dismissed the lawsuit of this case on the cancellation claim of the tax disposition of KRW 11,567,142 of corporate tax for the business year 199, KRW 107, KRW 197 of special surtax and KRW 250 of the special surtax.

The plaintiff did not appeal against this, but only the defendant appealed against the defendant among the above 199 business year taxation, the above 200 business year corporate tax and special surtax taxation, and the part against the defendant among the above 2000 business year corporate tax and special surtax taxation. Since the appeal against the defendant among the above 2000 business year is withdrawn, the scope of the party members' judgment is limited to the portion exceeding 11,567,142 of the above 199 business year corporate tax and special surtax taxation which the court of first instance ordered cancellation and the portion exceeding 10,841,197 of the above 199 special surtax taxation, and thus, it is necessary to review and determine only

2. Details of the disposition;

The following facts do not conflict between the parties, or subparagraph A (No. 1), No. 2-2, No. 1 (1)

The evidence 1-1, Eul evidence 2-1, Eul evidence 1, and Eul evidence 14 may be determined by adding up the whole pleadings.

가. 피고는 국세청으로부터 업무감사에 따른 지적을 받고, 2003. 4. 1. 원고가 1999 사업연도인 1999. 12. 23. ○○시 ○○동 315-30 공장용지 375㎡(이하 '제1토지'라 한다), 같은 동 315-29 공장용지 중 55.22㎡(이하 '제2토지'라 한다) 등 합계 430.22㎡를 심〇〇에게 130,000,000원에 양도함으로써 소득과 양도차익이 발생하였음에도 그에 대한 법인세 및 특별부가세를 신고 · 납부하지 않았음을 이유로, 양도가액 130,000,000원과 그 취득가액 92,899,466원의 차액인 37,100,534원을 과세표준으로 한 1999 사업연도 법인세(가산세 포함, 이하같다) 11,676,276원, 특별부가세(가산세 포함, 이하같다) 9,727,759원 등 합계 21,404,035원의 과세처분을 하였다.

B. After that, the defendant corrected the transfer value of the land Nos. 1 and 2 on June 7, 2004 as KRW 153,60,00, and the acquisition value of the land as KRW 80,975,547, respectively, according to the result of the plaintiff's request for examination, and corrected the corporate tax as the tax base of KRW 72,624,453, and the special surtax as KRW 21,542,15,767, respectively (hereinafter referred to as "revision disposition of corporate tax and special surtax for the business year 199).

C. In other words, the Defendant, on October 13, 2006, corrected the transfer value of the first and second lands to KRW 153,60,000, and the acquisition value to KRW 92,89,466, and corrected the corporate tax to KRW 17,794,228, and the special surtax to KRW 16,682,089, by reducing the corporate tax to KRW 60,70,534, which is the difference, as the tax base.

3. Whether the disposition is lawful;

A. The plaintiff's assertion

피고는 제1, 2토지의 양도가액을 153,600,000원으로 산정하였는데, 그 금액에는 제1, 2토지의 대금뿐 아니라 〇〇시 〇〇동 315-29 지상 2층 연면적 132㎡의 건물(이하 '이 사건 건물'이라 한다)에 대한 매매대금까지 포함된 것이므로, 위 양도가액 153,600,000원에 대응하는 취득가액은 위 토지들의 취득가액 92,899,466원과 이 사건 건물의 취득가액 23,900,000원을 더한 116,799,466원이 되어야 하고, 그에 따른 양도차익도 36,800,534원이 되어야 한다.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

다음 사실은 당사자 사이에 다툼이 없거나, 갑 제1호증, 갑 제3호증, 갑 제4호증의 1, 2, 3, 갑 제14호증, 갑 제18 내지 26호증, 을 제9호증, 을 제13호증의 각 기재, 당심 증인 백〇〇의 증언에 변론 전체의 취지를 종합하여 이를 인정할 수 있다.

(1) 원고는 1995. 2. 18. 창원지방법원 통영지원 97타경4501 부동산임의경매절차에서 〇〇시 〇〇동 315 공장용지 1,521㎡를 경락받았고(위 부동산임의경매절차상의 낙찰허가결정서에 이 사건 건물이 제시외 건물로서 기재되어 있으나, 이 사건 건물은 건축물대장상에 1985. 11. 25.자로 백〇〇의 소유로 등재되어 있었던 점에 비추어 낙찰대상에서 제외되었다고 보이고, 가사 그렇지 않다고 한다면 이 부분에 관한 낙찰허가결정은 무효라고 봄이 상당하다), 1999. 1. 27.에는 같은 동 230-2 공장용지 617㎡가 위 토지에 합병되었는데, 그와 같이 합병된 토지의 장부상 가액은 461,668,587원이다.

(2) 원고는 1999. 7. 2. 백〇〇로부터 위 합병된 토지의 지상에 있는 이 사건 건물(이후 위 합병된 〇〇시 〇〇동 315 토지가 아래와 같은 분할과정을 거치게 되면서 이 사건 건물은 같은 동 315-29 위에 있게 되었다)을 대금23,900,000원에 매수하였다.

(3) 1999. 7. 6. 위 합병된 〇〇시 〇〇동 315 공장용지 2,138㎡로부터 같은 동 315-29 공장용지 1,080㎡가 분할되었고, 분할된 같은 동 315-29 토지는 1999. 12. 23. 다시 같은 동 315-29 공장용지 705㎡와 제1토지로 분할되었다.

(4) 원고는 1999. 8. 2. 심〇〇에게 제1토지와 제2토지(실제로는 〇〇시 〇〇동 315-29 공장용지 705㎡ 중 5522/70500 지분에 관한 매매가 이루어졌다) 및 이 사건 건물을 대금 153,600,000원에 매도하였다.

(5) 위 제1, 2토지에 관하여는 1999. 12. 23. 심〇〇 앞으로 소유권이전등기가 경료되었고, 이 사건 건물에 관하여는 1999. 8. 5. 원고 명의로의 소유권이전등기가 생략된 채 백〇〇로부터 심〇〇에게로 바로 소유권이전등기가 경료되었다.

D. Determination

(1) 위 인정사실에 의하면, 원고가 1999. 8. 2. 심〇〇에게 부동산을 매도하고 매매대금으로 수령한 153,600,000원은 1999 사업연도의 익금에 산입되어야 할 것이고, 다른 한편 위 익금산입액은 제1, 2토지 및 이 사건 건물에 대한 매매대금이므로 그에 대응하는 제1, 2토지의 취득가액 92,899,466원(위 합병된 토지의 법인 장부상 취득가액 461,668,587원X제1, 2토지의 면적의 합계인 430.22㎡/위 합병된 토지의 전체면적인 2,138㎡)과 이 사건 건물의 취득가액 23,900,000원을 합친 116,799,466원은 손금에 산입되어야 할 것이므로, 위 익금산입금액에서 손금산입금액을 제한 36,800,534원이 원고의 1999 사업연도의 소득 및 위 각 부동산의 매매로 인한 양도차익이 되어야 한다.

(2) The calculation of the amount of corporate tax and special surtax to be imposed on the Plaintiff by June 7, 2004, on the basis of the above income and transfer margin 36,800,534 won as the tax base for the business year 1999, which shall be imposed on the Plaintiff by June 7, 2004, is as follows.

(A) Corporate tax;

Principal tax: 36,800,534 won X0.16 (Tax Rate) =5,888,085 won

Additional tax: 5,88,085 WonX0.2 (Tax Rate) =1,177,617 won

Unpaid portion: 5,88,085 WonX0.05 (Tax Rate) X1,529 (Period from April 1, 200 to June 7, 2004) - 4,501,440 won

Total: 11,567,142

(b)Special surtax

Principal tax: 36,800,534 won X0.15 (Tax Rate) = 5,520,080 won

Additional tax: 5,520,080 won X-2 (Tax Rate) =1,104,016 won

Unpaid portion: 5,520,080 won X0.05 (Tax Rate) X1,529 (Period from April 1, 200 to June 7, 2004) - 4,220,101 won

Total: 10,841,197 won

(C) Therefore, the portion exceeding KRW 11,567,142 out of the corrective disposition of the corporate tax for the business year 1999 and the portion exceeding KRW 10,841,197 out of the corrective disposition of the special surtax is unlawful.

4. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is without merit, and it is so decided as per Disposition.

Related Acts and subordinate statutes

former Corporate Tax Act (amended by Act No. 6558 of Dec. 31, 2001)

Article 15 (Scope of Gross Income)

(1) The gross income shall be the amount of earnings generated by transactions which increase the net assets of the concerned corporation, except for capital input or financing and what is provided in this Act.

Article 55 (Tax Rates)

(1) The corporate tax on the income for each business year of a domestic corporation shall be the amount calculated by applying the following tax rates to the tax base under the provisions of Article 13 (hereinafter “calculated tax amount”, and where there exist corporate tax on the proper excess earned reserves under the provisions of Article 56, it shall be the sum of such corporate tax:

10 million won or below: 16/100 of the tax base;

Article 60 (Declaration of Tax Base, etc.)

(1) A domestic corporation liable for tax payment shall report the tax base and tax amount of corporate tax on income for the concerned business year to the chief of the district tax office having jurisdiction over the place of tax payment within three months from the end

(3) The provisions of paragraph (1) shall also apply where a domestic corporation has no income or has losses for each business year.

Article 76 (Additional Tax)

(1) In collecting corporate tax on income for each fiscal year pursuant to the provisions of Article 71, the chief of the district tax office having jurisdiction over the place of tax payment shall, where the relevant domestic corporation falls under any of the following subparagraphs, collect the amount added to the amount under each relevant subparagraph as corporate tax: Provided, That the provisions of subparagraph 2 shall not apply to the application of the provisions of subparagraph 1, and the provisions of additional

1. Where there is no report under the provisions of Article 60, or where the person fails to keep the books and to perform the bookkeeping duties under the provisions of Article 112, the amount equivalent to 20/100 of the calculated tax amount (excluding the corporate tax on the proper reserve income; hereafter in this paragraph the same shall apply) determined by the chief of the district tax office having jurisdiction over the place of tax payment (where such amount is less than 7/10,00 of the revenue amount of the relevant corporation or there is no calculated tax amount, the amount equivalent to 7/10,000 of the revenue amount): Provided, That where the unreported income amount exceeds 5 billion won, it shall be the amount equivalent to 30/100 of the calculated tax amount (where such amount is short of 10/10,000 of the revenue amount

3. Where corporate tax under Article 63 or 64 is not paid or is underpaid (including the amount, etc. equivalent to the interest to be paid in addition to corporate tax under Article 29 (4), Article 56 (4), and Article 56 (4) of the Restriction of Special Taxation Act), the amount calculated by applying the rate prescribed by the Presidential Decree to the unpaid or underpaid tax amount, taking into account the interest rate applied by financial institutions to overdue loans, the period from the day following the payment deadline until the

Part V Special surtax on the transfer of land, etc.

Article 99 (Tax Base)

(1) The tax base of special surtax shall be gains on transfer accruing from the transfer of assets falling under any of the following subparagraphs (hereinafter referred to as "land, etc."):

1. Land (referring to any land category to be registered in the cadastral record under the Cadastral Act);

2. Buildings (including facilities and tools attached to such buildings).

(2) "Transfer" in paragraph (1) means that the land, etc. is actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., regardless of registration, etc. of land, etc. In such cases, where a donee takes over any obligation of a donor in an onerous donation (excluding cases falling under the main sentence of Article 47 (3) of the Inheritance Tax and Gift Tax Act), the portion equivalent to the amount of such obligation in the donation amount

(3) The gains on transfer referred to in paragraph (1) shall be the amount obtained by deducting the following amounts from the transfer value:

1. Acquisition value: Provided, That in case where a corporation which has received a contribution of the property not included in the taxable amount of inheritance taxes or the taxable amount of gift taxes under the Inheritance Tax and Gift Tax Act transfers the land, etc. as prescribed by the Presidential Decree, the acquisition value of the contributor to the relevant land, etc. shall be the acquisition value of the relevant corporation, and in case of an organization considered as a corporation under Article 13 (2) of the Framework Act

(6) In calculating gains on transfer of land, etc., the time of acquisition and transfer shall be prescribed by Presidential Decree.

Article 101 (Tax Rates)

(1) The amount of special surtax on the transfer of land, etc. of a corporation shall be calculated by applying the following tax rates to the tax base under the provisions of Article 99:

1. For unregistered transferred land, 30% of the tax base; and

2. 15/100 of the tax base in cases other than those under subparagraph 1.

Article 102 (Return, Payment, Determination, Correction, and Collection)

(1) The provisions concerning the return, payment, determination, correction and collection of corporate tax base on income for each business year to which the date of the transfer of land, etc. belongs shall apply mutatis mutandis to the return, payment, determination, correction and collection of the tax base of corporate tax on income for each business year under the provisions of Article 99, but the return, payment, determination, correction and collection of the total amount of corporate tax shall apply mutatis mutandis to other corporate tax. In such cases,

Article 12 (Keeping and Entry of Books) Any corporation liable for tax payment shall keep its books, keep them by double entry, and keep and preserve important documentary evidence related to the books: Provided, That for non-profit domestic corporations, this shall be limited to those operating a profit-making business under Article 3 (2) 1 and 6.

Enforcement Decree of the former Corporate Tax Act (amended by Presidential Decree No. 17457 of Dec. 31, 2001)

Except as otherwise provided for in the Act and this Decree, earnings under Article 15 (1) of the Act shall be those under any of the following subparagraphs:

2. The amount of transferred assets (including one’s own stocks);

The losses under the provisions of Article 19 (1) of the Act shall be those as provided for in the following subparagraphs, except for those prescribed by the Act and this Decree:

2. The book value at the time of transfer of transferred assets;

Article 119 (Tax Rate on Unpaid Additional Taxes)

(1) The term "ratio prescribed by Presidential Decree" in Article 76 (1) 3 of the Act means the ratio of 5/10,000 per day.