원고가 별지 목록기재 토지 및 건물(이하 이 사건 부동산이라고 한다)에서 2년 이상 프라스틱제품 제조용 공장을 운영하다가 1990. 4. 9. 공장이전을 목적으로 이를 타인에게 양도하고 1991. 3.경 ㅇㅇ시 ㅇㅇ동 ㅇㅇㅇ의 3으로 공장을 이전한 사실, 원고는 이 사건 부동산 양도 당시의 조세감면규제법(1991. 12. 27. 법률 제4451호로 개정되기 이전의 것, 이하 같다) 제67조의12 및 같은법시행령(1991. 12. 31. 대통령령 제13545호로 개정되기 이전의 것, 이하 같다) 제55조의10 등을 근거로 하여 신공장가격은 장부가액으로, 구공장가격은 기준시가로 계산하면 이 사건 부동산 양도로 인한 양도소득세 면제비율이 100%라며 피고에게 그 전액에 대하여 면제신청을 한 사실, 그러나 피고는 위 양도소득세 면제비율을 계산함에 있어 이 사건 부동산 양도로 인한 원래의 양도소득세 산출세액 금338,025,113원에서 신공장가액은 장부가액으로, 구공장가액은 실지거래가액으로 비율을 산정하여 계산한 면제세액 금183,457,373원을 차감한 후 납부불성실 가산세 금15,456,774원을 합하여 1993. 12. 17. 원고에 대하여 양도소득세 금170,024,510원 및 방위세 금37,096,250원을 부과하는 처분(이하 이 사건 부과처분이라고 한다)을 한 사실은 당사자 사이에 다툼이 없거나 갑제1호증, 갑제3호증의 2, 을제1호증의 1, 2, 을제4호증의 1, 2, 을제13호증의 1, 2, 을제14호증의 각 기재 및 변론의 전취지에 의하여 인정할 수 있다.

2. Whether the disposition is lawful;

A. The assertion

As to the Defendant’s assertion that the instant disposition was lawful in accordance with the relevant laws and regulations, the Plaintiff asserts that the instant disposition should be revoked on the following grounds is an unlawful disposition contrary to the principle of no taxation without law.

"The exemption rate under Article 5-10 (1) of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act, i.e., the new factory's value in calculating the ratio of the value of the new factory to the value of the old factory, shall be the total amount of the factory's relocation cost and the book value of the building and machinery. However, there is no doubt that the value of the old factory shall be the value of the old factory's land, building and machinery, and so the transfer value shall be the value of the old factory's land, building and machinery. Therefore, "the transfer value" shall be "the standard market price for the construction of the literature in accordance with Article 2 (2) of the Regulation of Tax Reduction and Exemption Act and Article 23 (2) and (4) of the Income Tax Act". If calculating the exemption rate, the transfer income tax on the transfer of the real estate of the plaintiff shall be fully exempted, notwithstanding the fact that the defendant erred by misapprehending the legal principles and applied the above transfer

First of all, Article 67-12 (1) of the Regulation of Tax Reduction and Exemption Act provides that capital gains tax shall be exempted as prescribed by the Presidential Decree on the income accrued from the transfer of land, etc. within the scope prescribed by the Presidential Decree for the purpose of transferring a factory operated continuously for not less than two years by an individual. Article 55-10 (1) of the Enforcement Decree of the same Act provides that the tax amount to be exempted pursuant to the provisions of Article 67-12 (1) of the same Act provides that the calculated tax amount on the income subject to exemption shall be calculated by multiplying the calculated tax amount on the income subject to exemption by the ratio (or 100/100 in case of exceeding 10/100) the value of the new factory in the value of the old factory (or site area) by the value of the new factory (or 100/100 in case of the old factory). In this case, the value of the old factory shall be the value of the land and machinery of the old factory.

On the other hand, Article 2 (2) of the Regulation of Tax Reduction and Exemption Act provides that the terms other than those listed in paragraph (1) shall be governed by the examples of terms used in the Acts listed in Article 3 (1) 1 through 14, and Article 23 (1) 2 of the Income Tax Act provides that the transfer value from Article 23 (4) 1 of the Income Tax Act (amended by Act No. 4661 of December 31, 1993; hereinafter the same shall apply) shall be based on the standard market price at the time of transfer: Provided, That in the case prescribed by the Presidential Decree, the transfer value pursuant to Article 23 (1) 1, 2 and 5 shall be based on the actual transaction price.

C. Determination

Therefore, as in this case, the basic principle of applying the standard market price with the transfer value and acquisition value for calculating the transfer income amount together with Article 45 (1) 1 of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act is as to whether the value of the old factory whose transfer value should be considered as the actual transaction value or as the standard market price in Article 5-10 (1) of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act. The transfer value under Article 55-10 (1) of the Enforcement Decree of the Regulation of Tax Reduction and Exemption Act is to be defined in the purport that the old factory is transferred and the new factory is to calculate the transfer value based on the amount actually required for newly acquiring the new factory, so the meaning of transfer value is not necessarily consistent with Article 23 (4) of the Income Tax Act. Moreover, in determining the transfer value under Article 170 (1) of the Enforcement Decree of the Income Tax Act, if one of the transfer value or acquisition value is determined based on the actual market price, the transfer value should also be determined based on the basic principle of acquisition value.

Furthermore, in the case of this case, the value of a new factory is determined at the book value, and it is clear that it means the actual transaction value as the acquisition cost, and so long as the actual transaction value (book value) is applied at the new factory price, the actual transaction value of the old factory shall also be applied and the exemption rate shall be reasonably calculated. If the transfer value of the old factory is interpreted as the standard market price as the standard market price, as alleged by the plaintiff, the standard market price is relatively lower than the actual transaction price, and the new factory price is excessively appropriated and the result of excessive calculation would result in unreasonable result. Therefore, under Article 55-10 (1) of the Regulation of Tax Reduction and Exemption Act, the transfer value of the old factory shall be deemed to mean the actual transaction price (Article 22-1 and 2-1 of the evidence No. 2), and the Commissioner of the National Tax Service shall also interpret the questioning of the documents number on October 27, 1992 as the above to the effect that the plaintiff's assertion to the same purport is without merit.

Therefore, it is recognized that the disposition of this case was legally made according to the rule of law, and there is no other illegal reason.

3. Conclusion

Therefore, the plaintiff's claim seeking the revocation of the disposition of this case is without merit, and it is dismissed, and the costs of lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.