The following facts may be acknowledged in light of the whole purport of the pleadings in the descriptions of Gap 5 through 8 and 10, Eul 9-1 through 4, Eul 1 and 3-1, 2, Eul 2, Eul 4-1, 2, and 3, and Eul 4-1, 2, and 3:

가. 원고는 택지개발촉진법에 의하여 1990. 12. 31. 건설부로부터 택지개발사업인가를 받은 부산직할시에 원고 소유의 부산 ㅇ구 ㅇㅇ동 ㅇㅇㅇㅇ 대 3,624㎡ 및 그 지상 건물 707.04㎡와 같은 동 ㅇㅇㅇㅇ의 1 전 169㎡, 같은 동 ㅇㅇㅇㅇ의 전 800㎡, 같은 동 ㅇㅇㅇㅇ의 4 전 106㎡를 공공용지의취득및손실보상에관한특례법에 의하여 협의매도하고 1992. 4. 30. 합계 1,764,321,000원의 수용보상금을 지급받았다.

나. 원고는 1993. 5. 31. 양도소득세 신고(실지조사신청)를 함에 있어서 위 각 부동산의 양도가액은 위 수용가액으로 하되, 같은 동 ㅇㅇㅇㅇ의 1 전 169㎡, 같은 동 ㅇㅇㅇㅇ의 3 전 800㎡, 같은 동 ㅇㅇㅇㅇ의 4 전 106㎡(이하 1980년 취득토지라고 한다)는 1980. 8. 18. 소외 최ㅇ철로부터 2,276,205원에 취득하였고, 같은 동 ㅇㅇㅇㅇ 대 3,624㎡(이하 1987년 취득토지라고 한다)는 1987. 12. 25. 소외 ㅇㅇㅇㅇㅇㅇ 안ㅇ원으로부터 712,400,000원에 취득하였다고 신고하였으나, 부산 ㅇ구 ㅇㅇ동 ㅇㅇㅇㅇ 지상건물 707.04㎡(이하 1987년 취득건물이라고 한다)에 대하여는 양도소득신고를 하지 아니하였다.

C. On November 14, 1993, the Defendant recognized that the acquisition value of the acquired land in 1980 or the acquired land in 1987 reported by the Plaintiff is not the actual transaction value, and issued a disposition of imposition of capital gains tax of 652,806,760, which is calculated as stated in the attached Table of Calculation of Tax Amount (hereinafter “instant disposition”) by deducting KRW 300,000 as well as KRW 10,000 paid by the Plaintiff under the provisions of Article 88-2 of the Regulation of Tax Reduction and Exemption Act from the actual transaction value, and the remaining land and buildings shall be calculated based on the standard market value.

2. Whether the instant disposition is lawful

A. As to the assertion that capital gains tax is exempted under the Regulation of Tax Reduction and Exemption Act

(1) Article 57(1) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4521, Dec. 8, 1992) provides for an amount of tax equivalent to 50/100 (80/100 for a portion of land transfer price paid with bonds as prescribed by the Presidential Decree) of transfer income tax or special surtax on any income accruing from the transfer of land or buildings (hereinafter referred to as “land, etc.”) falling under any of the following subparagraphs: Provided, That the amount of tax equivalent to 70/100 (100/100 for a portion of land transfer price paid with bonds as prescribed by the Presidential Decree before the public announcement of the project approval) of the project area to which the land, etc. belongs shall be reduced or exempted, and the amount of tax equivalent to 70/100 (100/100 for a portion of land transfer price paid with bonds as prescribed by the Presidential Decree) of transfer income tax or special surtax shall be reduced or exempted by 10,000,000 won for each taxable period of tax reduction or exemption by 27

(2) According to the facts acknowledged above, the plaintiff sold each of the above real estate owned by the plaintiff to Busan Special Metropolitan City and Metropolitan City, which was approved for the housing site development project by the Construction Division on December 31, 1990 under the Housing Site Development Promotion Act and received compensation for expropriation of the total amount of KRW 1,764,321,000 on April 30, 1992. Thus, on April 30, 1992, the payment date shall be regarded as the transfer date, and the transfer income tax shall be exempted and the amount of KRW 300,00,000 shall be calculated as the limit. The defendant's disposition of this case against which the transfer income tax was imposed by the Construction Division under the Housing Site Development Promotion Act shall be justified. Accordingly, on December 31, 1990, which was approved for the housing site development project from the Construction Division by Busan Special Metropolitan City and Metropolitan City as the transfer date, the plaintiff's assertion that the transfer income tax was exempted under the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4545, Dec. 28, 4.

B. On the assertion that capital gains tax should be calculated based on the actual transaction price

(1) In calculating gains from the transfer of assets, Articles 23(4)1 and 45(1)1 of the Income Tax Act provide that the acquisition value and transfer value shall, in principle, be the standard market price at the time of the acquisition or transfer of the assets concerned, but in certain cases prescribed by the Presidential Decree, they shall be based on the actual transaction price. Article 170(4)2(e) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 14083, Dec. 31, 1993) provides that one of the cases prescribed by the Presidential Decree pursuant to Article 170(4)2(e) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 14083, Dec. 31, 1993) is confirmed in cases where the actual transaction price at the time of the transfer or acquisition is confirmed in cases where the actual transaction price at the time of the transfer or acquisition is confirmed in cases where the transferor or the actual transaction price is in violation of relevant laws or regulations.

(2) Meanwhile, according to the evidence adopted above, since the plaintiff can recognize the fact that it did not make the scheduled return or the final return of capital gains tax on the building acquired in 1987, the acquisition value and the transfer value are natural that the standard market price should be applied in accordance with the principle of Articles 23(4)1 and 45(1)1 of the Income Tax Act. (B) In filing a return of capital gains tax on the land acquired in 1980, the plaintiff reported the transfer value of KRW 224,121,00 and the acquisition value of KRW 2,276,205, respectively, but the reported acquisition value is not the actual acquisition value but the amount which the plaintiff voluntarily stated according to the tax base without internal tax base, and it can be recognized that the actual acquisition value cannot be confirmed as 100,000,000 won and the actual transaction value at the time of transfer cannot be confirmed as 200,000 won and the actual transaction value at the time of acquisition or transfer.

(3) The Plaintiff asserts that the calculation of capital gains tax is unlawful based on the standard market price that is more unfavorable than the case where there is speculation with the Plaintiff who has no speculative speculation. Thus, even though there is room for application of a false contract if the Plaintiff, pursuant to Article 170(4)3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14083 of Dec. 31, 1993), if the actual transaction price is confirmed after the final return period, the actual transaction price should be calculated based on the standard market price, and the actual transaction price should not be calculated based on the actual transaction price, even if the actual transaction price is confirmed after the final return period, and the transfer price should be calculated based on the standard market price, so it cannot be applied to the Plaintiff who is disadvantageous to the transferor of the real estate transaction, and thus, it cannot be applied to the transferor of the real estate transaction without any unfavorable nature to the Plaintiff by applying the standard market price of capital gains tax to the above change in the standard market price (see Supreme Court Decision 93Nu1884, Mar. 222, 1994).

3. Conclusion

Therefore, in this case where the calculation of tax amount is deemed justifiable, the plaintiff's claim is without merit, and it is so decided as per Disposition.

June 16, 1995