Article 96 of the Income Tax Act

2. The plaintiff's conjunctive claim is dismissed.

3. Litigation costs shall be borne by the plaintiff.

A. On March 18, 2003, the Plaintiff: (a) obtained a successful bid in the amount of KRW 363,100,00,00 and completed the registration procedure for transfer of ownership on the ground of successful bid due to a voluntary auction; (b) transferred KRW 770,876,50,00 for compensation on August 22, 200 pursuant to the “Act on Acquisition of and Compensation for Land, etc. for Public Works Projects” to the Ministry of National Defense; (c) on May 31, 2004, based on the acquisition price and actual transaction price of the instant real estate, the transfer price of KRW 384,216,70,700,000 for the real estate and the actual transaction price of KRW 770,876,50 for compensation; and (d) on May 31, 2004, the tax base of capital gains tax was reported based on the acquisition price and actual transaction price of the instant real estate (i.e., the transfer price of KRW 38216,700.

B. Accordingly, on July 10, 2004, the Defendant calculated capital gains tax (138,318,012 won) in line with the actual income value based on the Plaintiff’s report, and determined KRW 139,97,820 as the capital gains tax for the year 2003 for the Plaintiff by adding KRW 1,659,816 to the additional paid additional tax due to non-payment after the Plaintiff’s report (hereinafter “instant payment notice”).

C. On October 29, 2004, when the Plaintiff was delinquent in paying the capital gains tax, the transfer of the instant real estate constitutes a transfer within one year after acquisition due to unavoidable reasons, and is not a transaction for the purpose of short-swing profit, and thus, it was unlawful to impose the capital gains tax based on the actual transaction price, even though the capital gains tax is determined based on the standard market price not based on the actual transaction price. Accordingly, on December 30, 2004, the Defendant issued a notice of rejection of the Plaintiff’s request for correction (i.e., “the refusal of the instant request for correction”).

[Ground of recognition] Facts without dispute, Gap 1 to 6 evidence, Eul 1 to 7 evidence (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

The Defendant asserts that ① the Plaintiff’s primary revocation is inappropriate as it seeks revocation of a mere notice that is merely a tax collection procedure, not a tax imposition disposition, and ② as to the conjunctive claim, the transaction of the instant real estate constitutes a case where the real estate was transferred within one year after the real estate was acquired for the purpose of short-swing profit, and thus, the transfer margin should be calculated based on the actual transaction price. Upon the Plaintiff’s application, the Defendant determined and notified the transfer income tax as above, and rejected the Plaintiff’s request for

As to this, the Plaintiff was awarded a successful bid for the transfer of the Yangyang, and the real estate of this case was inevitably transferred according to the implementation of a public service while preparing for the Yangyang Business, and even if it was conducted within one year after the acquisition of the real estate of this case, it is a normal transaction not for the short-swing profit, and thus, the transfer income tax should be determined according to the standard market price rather than the actual transaction price. The Plaintiff asserts that the instant notice of payment and the instant disposition rejecting the request for correction, which different premise, are unlawful

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Judgment on the main claim

(1) According to Article 22 of the Framework Act on National Taxes, Article 10-2 of the Enforcement Decree of the same Act, and Articles 105 and 114 of the Income Tax Act, capital gains tax is converted from the portion first transferred by a tax return method on January 1, 200 to the tax payment method, and the taxpayer is obligated to pay the amount of tax determined and payable together with the return when the taxpayer files the tax base and tax amount. Thus, if the taxpayer merely files a return of tax base and tax amount and notifies the tax authority that the taxpayer should pay the same amount of tax as the reported matters without any correction as the tax amount should not be deemed as a collection disposition for the collection of the finalized tax (see, e.g., Supreme Court Decision 203Du8180, Sept. 3, 2004).

(2) As to the instant case in light of the aforementioned legal principles, the Plaintiff’s tax base and tax amount were determined by filing a preliminary return on the transfer income tax following the transfer of the instant land to the Defendant on May 31, 2004, but the Plaintiff’s final tax amount was not voluntarily paid, and the Defendant’s notification was merely a notification that the Plaintiff paid transfer income tax calculated according to the Plaintiff’s return without any correction as to the Plaintiff’s return on July 10, 2004. This act merely means the peremptory notice or claim for the collection of the final tax amount, but it cannot be said that the Plaintiff’s notice of tax payment merely means the peremptory notice or claim for the collection of the final tax amount, and thus, it cannot be said that

D. Determination on the conjunctive claim

(1) In full view of the provisions of Article 96(1)4 and (4) of the Income Tax Act, and Article 162-2(4) of the Enforcement Decree of the Income Tax Act, where real estate is transferred within one year from the date of its acquisition for the purpose of short-swing profit, the transfer margin shall be calculated based on the actual transaction price so that the transfer margin may be calculated, but where the real estate is transferred for unavoidable reasons, such as expropriation, it may be calculated based on the standard market price. The purport of each of the above provisions is that where the real estate is transferred within one year from the date of its acquisition, it shall be presumed that the transfer for the purpose of short-swing profit is transferred for the purpose of the short-swing profit. However, in light of the specific circumstances such as the acquisition process, use condition, transfer circumstance, etc. in the transaction of the real estate in question, it is reasonable to interpret that the transaction is excluded from the actual transaction price and that the transfer margin should be calculated based on the standard market price (see, e.g., Supreme Court Decision 92Nu1282

(2) Therefore, as to whether the instant land transaction constitutes a normal transaction that is not for the purpose of short-swing profits, it is insufficient to recognize the instant land transaction only with each description of evidence Nos. 12 (including a serial number) and witness red ○○ as shown in the Plaintiff’s assertion, and there is no other evidence to acknowledge it.

Rather, the following facts are acknowledged by comprehensively taking account of the purport of the entire pleadings. ① From around 1993 to ○○○○○○○○○○○○○○○○○○○○○○ in order to transfer the said land, the Plaintiff acquired the said land at around August 11, 2002, and transferred the said land at around February 11, 2004, and it is difficult to easily obtain the reasons for acquiring the instant real estate by taking out considerable money again after acquiring the said land at the site prior to the transfer of the said ○○○○○○○○○○○○○○○○○○○○○○○○ in order to acquire the said real estate. ② The real estate of this case was attached to the steel fence of the American military shooting range, and thus, it is difficult to obtain the said real estate from the Plaintiff’s unlawful acquisition of the real estate for the purpose of using the said real estate for a short-term period of more than 200,000 won after taking account of the fact that it was widely known that the real estate was transferred for more than 3 months after its acquisition.

3. Conclusion

Therefore, the plaintiff's primary claim is unlawful, and the plaintiff's primary claim is dismissed as it is without merit. It is so decided as per Disposition.

Related Acts and subordinate statutes

Income Tax Act (amended by Act No. 7006 of Dec. 30, 2003)

Article 94 (Criminal Intent of Transfer Income)

(1) The transfer income shall be the following incomes generated in the concerned year:

1. Income accruing from transfer of land (referring to a lot of land subject to registration of land category in the cadastral record under the Cadastral Act) or buildings (including the facilities and structures annexed to such buildings);

Article 96 (Transfer Price)

(1) The transfer value of assets under Article 94(1)1 and 2 shall be based on the standard market value at the time of the transfer of the assets concerned: Provided, That if the assets concerned fall under any of the following subparagraphs, it shall be based on the actual transaction value between the transferor and transferee (hereinafter referred to as “actual transaction value”).

(4) In the application of the provisions of paragraph (1) 4, where the transfer is made within one year from the acquisition due to inevitable causes, such as the expropriation (including the purchase by consultation) under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor and other Acts, the standard market price may be applied as

The Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005)

Article 162-2 (Transfer Price)

(4) In the application of the provisions of Article 96 (4) of the Act, where the real estate acquired by inheritance is transferred within one year after it is acquired, or where it is deemed that it is not traded for the purpose of short-term trading marginal profits in light of the details of acquisition or transfer of real estate and the actual conditions of its use, etc. in the application of the provisions of Article 176-2 (5) in case where it is transferred within one year after it is acquired through inheritance, or where it is acquired within one year after it is acquired through expropriation under the Act on the Acquisition of Land,