[양도소득세부과처분취소청구사건][하집1985(1),594]
Whether the transfer margin can be calculated based on the apartment price based on the so-called computerized information
The apartment price based on so-called computerized information, which is the price revealed in the data computerized processing of apartment prices that are traded daily by the real estate presenting business operators who know apartment prices in Seoul Metropolitan Government, is illegal to impose capital gains tax on the basis of such information, on the ground that there are no grounds under related Acts and subordinate statutes such as Articles 23(4) and 45(1) of the Income Tax Act, Article 115(1)
Article 23 (4) of the Income Tax Act, Article 45 (1) of the Income Tax Act, Article 115 (1) of the Enforcement Decree of the Income Tax Act
Lee Jong-won
Head of Mapo Tax Office
The part of the defense tax of KRW 9,600,000 against the Plaintiff on January 23, 1984, which exceeds KRW 720,000 of capital gains tax of KRW 1,920,000,000, shall be revoked.
The plaintiff's remaining claims are dismissed.
The cost of lawsuit shall be ten minutes, and the remainder of the plaintiff shall be borne by the defendant.
Judgment seeking revocation of the whole taxation set forth in Paragraph 1 of this Article.
1. Factual basis
On June 28, 1982, the Plaintiff subscribed to 5,00,000 foot deposit. On October 21 of the same year, the Defendant: (a) on October 21, 198, the Plaintiff purchased 10,000 won from the above subscription deposit; (b) on March 16, 1983, the Plaintiff paid only the down payment and 1,200 intermediate payment in the name of Gangnam apartment located in Gangnam-gu, Seoul; (c) on January 15, 1984, on the ground that the Plaintiff transferred the above apartment but did not file a preliminary return or final return on the transfer margin; (d) on March 16, 198, the Plaintiff supplied 19,200,000 won to the Plaintiff with the above subscription deposit money of KRW 20,000,000,000,0000,0000,0000 won, which is 19,000 won or more, and (d) the so-called “11111,00,000,000,0,00, respectively.
2. Judgment on the issue
(1) In the instant case where the Plaintiff first transferred the house subscription deposit paper required for the purchase of apartment units to the Yang Jae-si, which expected the winning of the apartment in the future, and the transferee applied for the purchase of apartment units under the Plaintiff’s name and won the winning, and then changed under the name of Yang Jae-si’s name in the name of the transferee of the sale contract with the Plaintiff’s cooperation, the above legal relationship between the Plaintiff and Yang Jae-si is deemed to have transferred the right to acquire apartment units by participating in the sale of the apartment unit except for the transfer of the house subscription deposit paper itself, and this shall be deemed to fall under the case where the right to acquire the real estate under Article 23(1)2 of the Income Tax Act and Article 44(4)2
(2) Next, according to the purport of the entry of Eul evidence No. 2, which recognizes the authenticity of the purchase and sale contract for the above house subscription deposit passbook between the plaintiff and the two, and the defendant's purchase and sale contract for the above house subscription deposit passbook, the price of private apartment based on computerized information No. 2, which is the tax base, can be acknowledged. If the actual transaction price is not clear because some real estate introduction business operators informed of the apartment price in Seoul and do not make the preliminary return or final return of the purchase and sale of apartment, and do not make the purchase and sale of apartment price, the transfer tax amount shall be calculated based on such fact. Articles 23 (4), 45 (1), and 60 of the Income Tax Act at the time of the above transfer, are based on the standard market price at the time of transfer and acquisition of the assets, and the standard market price is determined by Presidential Decree, and Article 115 (1) 1 of the Enforcement Decree of the Income Tax Act provides that the value of the land, building and real estate in a specific area can be determined based on the standard market price of the above taxation amount.
3. Conclusion
Therefore, if the tax amount is calculated based on the transfer margin of KRW 1,200,000 upon the transfer of the above house deposit passbook, the Plaintiff’s claim of this case was duly accepted within the scope of seeking the cancellation of the excess portion, and the remainder is dismissed as it is so decided as per Disposition by applying Articles 89 and 92 of the Civil Procedure Act to the burden of litigation costs.
Judges Lee Young-tae (Presiding Judge)