A. Of the instant lawsuit, the part seeking the revocation of the part exceeding KRW 3,531,231 out of the disposition of the capital gains tax for the year 2001, which the Defendant rendered to the Plaintiff on May 2, 2007, shall be dismissed.

B. The plaintiff's appeal is dismissed.

2. Of the total litigation costs, 50% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

The Defendant’s disposition of imposition of capital gains tax of KRW 9,639,820 for the Plaintiff on May 2, 2007 shall be revoked.

2. Purport of appeal

A. On March 17, 1997, the Plaintiff, as her husband, acquired 1/2 shares of 00 from ○○○○○, ○○○, ○○○, 197-1 large 1,165 square meters (hereinafter “instant land”). On May 24, 2001, the Plaintiff transferred the instant land to ○B along with the instant land, and paid 3,400,000 capital gains tax calculated by taking the transfer value of 1/2 shares of the instant land as 0 won on the same day as 0 won.

B. On June 26, 2001, the Plaintiff acquired the sales right under No. 104 and No. 2101 of △△△-dong, 274-1, △△△-dong, △△△△-dong (hereinafter “instant sales right”). On October 22, 2001, the Plaintiff transferred the sales right to Jeju-do, and made a preliminary return of the transfer income tax on November 6, 2001, stating that the transfer value and acquisition value of the instant sales right are 126,320,000 won, respectively, and that there is no transfer margin.

C. After conducting a tax investigation on March 2007, the Defendant recognized the actual transfer value of the instant sales right as KRW 140,320,000, and the actual acquisition value as KRW 126,320,000, respectively. Accordingly, on May 2, 2007, the Defendant adjusted the transfer income tax for 2001 to KRW 14,586,000 for the Plaintiff’s total determined tax amount, thereby imposing and notifying the Plaintiff of KRW 11,186,00 for the remainder after subtracting the already paid tax amount from KRW 3,40,00 for the Plaintiff (hereinafter “instant disposition”).

D. The plaintiff filed a request for adjudication on August 23, 2007, and the Tax Tribunal rendered a decision on May 7, 2008 to the effect that "the tax base and tax amount are corrected within the limit of 11,186,000 won for the capital gains tax originally corrected or notified in 2001 after re-investigation the gains on transfer of 1/2 shares among the land of this case transferred by the plaintiff on May 24, 2008. The defendant made a decision on May 14, 2008 that "the actual transfer value of 1/2 shares out of the land of this case was 40,00,000 won, and the acquisition value was 25,105,750 won, which applied the standard market price at the time of acquisition, and the capital gains tax was 1,546,180 won after deducting the capital gains tax amount from the original disposition of this case, 300,3000 won, 309, 2009, 3009.

E. On October 20, 2010, the Plaintiff filed a lawsuit seeking revocation of the instant disposition. On October 20, 2010, the first instance court rendered a judgment in favor of the Plaintiff to the effect that the acquisition value of the instant sales right is recognized as KRW 131,320,00 as the Plaintiff’s assertion. Accordingly, according to the purport of the judgment of the first instance court, the Defendant rendered a disposition of correction to reduce the amount of KRW 4,722,920 to KRW 131,320 on February 17, 2010, with the real acquisition value of the instant sales right as of February 17, 2010 as KRW 131,722,920 on the part of the Plaintiff. Accordingly, the capital gains tax imposed and notified on the instant disposition was finally 3,531,231 won (the total determined tax amount minus KRW 3,40,000,000).

Facts that there is no dispute over the basis of recognition, Gap evidence 1, 6, Eul evidence 1, 2, Eul evidence 10, and the purport of the whole pleadings

2. Judgment on the part not subject to cancellation in the case of this case

The plaintiff sought revocation of the disposition of this case, which is the disposition of this case, by the lawsuit of this case, on the premise that the transfer income tax belonging to the year 2001 for itself remains after deducting the already paid tax amount and the said tax amount remains in KRW 9,639

However, as seen earlier, the transfer income tax for the Plaintiff for the year 2001 remains according to the Defendant’s disposition of reduction or correction as of February 17, 2010, only KRW 3,531,231 (the amount calculated by deducting the already paid tax amount). Accordingly, the portion exceeding the above KRW 3,531,231 among the instant disposition is not subject to revocation.

Therefore, the part of the instant lawsuit seeking revocation exceeding the above KRW 3,531,231 among the instant disposition is unlawful.

3. Whether the dispositions of the instant case are legal.

A. Summary of the plaintiff's principal

(1) Although the actual transfer value of 1/2 of the instant land is 25,000,000 won, the Defendant is erroneous in calculating the tax base by deeming it as 40,000 won.

(2) The actual acquisition value of the sales right of this case is KRW 131,320,00,000, which is the sum of KRW 5,000,000, the Defendant erred in calculating the tax base by deeming the actual acquisition value of the sales right of this case as KRW 126,320,00,000, excluding the above premium.

(3) In relation to the right to sell real estate in this case, 4 million won for real estate presentation and 7 million won for apartment bedy, or at least 7 million won for expansion of apartment bedy, shall be deducted from the transfer income amount. The defendant has an error of not deducting it at the time of the instant disposition.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Whether the actual transfer value of 1/2 shares out of the instant land is KRW 25,00,000

Articles 96(1) and 97(1) of the former Income Tax Act (amended by Act No. 6871, Dec. 18, 2002; hereinafter the same) provide that “The transfer value or acquisition value of real estate or the right to acquire real estate shall be based on the standard market price at the time of transfer or acquisition of the relevant asset, only on the case falling under each subparagraph of Article 96(1).” Accordingly, Article 96(1)6 of the former Income Tax Act provides that “a case where the transferor files a return on the actual transaction price at the time of transfer or the time of acquisition along with evidential documents at the time of the final return of the tax base is one of the exceptional cases where the actual transaction price can be based on the actual transaction price at the time of transfer or acquisition of the relevant asset.” This provision of the former Income Tax Act is interpreted as an exception to the principle of assessment of transfer margin where a taxpayer transfers a certain asset to ensure that the actual transaction price is no more unfavorable than the actual transaction price due to the calculation of transfer margin based on the standard market price.”

However, the Plaintiff, like its assertion, transferred the instant land to the largestB by 50,000,000 won in total with the Plaintiff, a co-owner, and the Plaintiff filed a return with the Plaintiff at least 25,000,000 won in the actual transfer value of the said land’s 1/2 shares, or there is no evidence to prove that the Plaintiff filed a return at the time of the final return of the capital gains tax base for the year 2001, together with

Therefore, the Defendant shall calculate the transfer value and acquisition value of the portion of the instant land as the standard market price pursuant to Article 96(1) of the former Income Tax Act, and according to the evidence Nos. 1-2 and 9, the standard market price at the time of transfer and acquisition of the portion of the instant land 1/2 (=132,890 square meters x 1,165 square meters ± 2) and 25,105,750 won (=43,100 square meters x 1,165 square meters ± 2) as gains on transfer and 51,784,250 won, which is calculated by applying the actual transfer value at the time of the instant disposition to the Defendant’s actual transfer value to KRW 40,00,00,00, and the fact that it is larger than that calculated by applying the actual transfer value to KRW 14,894,250.

Therefore, the disposition of this case is not unlawful in imposing capital gains tax excessively because the defendant did not apply the transfer value of 1/2 shares to the standard market price as the plaintiff's assertion that there is an error that the defendant did not apply the transfer value of 25,000,000 won (the plaintiff determined the tax base and limit of 1/2 shares to 11,186,000 won according to the decision of the Tax Tribunal, so the plaintiff's actual transfer value should be applied to 25,000 won. However, the decision of the Tax Tribunal decided that the transfer value should be limited to 11,186,000 won, and the above argument is without merit). Accordingly, this part of the plaintiff's assertion is without merit.

(2) Whether the acquisition value of the instant sales right is KRW 131,320,000

As seen earlier, the Defendant recognized the acquisition value of the instant parcelling-out right as KRW 131,320,000, and accordingly corrected the transfer income tax for the Plaintiff for the year 2001. As such, the instant disposition did not have any unlawful ground as alleged by the Plaintiff. Accordingly, this part of the Plaintiff’s assertion is without merit.

(3) Whether there was a mistake in failing to deduct the statutory transit fee, etc.

There is no evidence to acknowledge that the Plaintiff spent the expenses of brokerage commission, etc. as alleged in the Plaintiff’s acquisition of the sales right of this case, and there is no reason to further consider the above assertion.

(4) The theory of lawsuit

There is no reason to request the plaintiff to withdraw the disposition of this case.

4. Conclusion

Of the instant lawsuits, the part seeking the revocation of the part exceeding KRW 3,531,231 among the instant dispositions must be dismissed, and the remainder of the Plaintiff’s claims should be dismissed. The judgment of the first instance court differs from this conclusion, and thus, the judgment of the first instance is modified as per Disposition.