2. The Defendant’s disposition of imposition of capital gains tax of KRW 31,828,830 against the Plaintiff on January 2, 2009 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The following facts are not disputed between the parties, or acknowledged by Gap evidence 1 through 5, Gap evidence 2, 3, 5, Eul evidence 1, 2, and 3, respectively, and the whole purport of the pleadings.

A. On March 9, 2004, the Plaintiff acquired and owned KRW 1,460,000 in total for KRW 1,580,000 for housing and its site, and transferred the instant land and building collectively to a third party in KRW 1,580,00,000 for KRW 1,580,000.

B. The Plaintiff calculated the transfer value as KRW 1,130,486,403, and the acquisition value as KRW 1,052,335,792, excluding the instant part of the instant land and the instant part of the building, on the ground that it constitutes one house for one household and is exempt from taxation, and subsequently voluntarily reported and paid KRW 4,490,250 to the Defendant.

C. After investigating the actual transaction price of the instant land and building, the Defendant additionally imposed and notified the Plaintiff on January 2, 2009, the transfer income tax amount of KRW 70,521,680,680, excluding the instant portion subject to non-taxation by applying the individual land price to the instant housing and the instant commercial building subject to non-taxation, on the grounds that the distinction between the transfer price of the instant commercial building and the instant commercial building subject to non-taxation, is unclear. In accordance with Article 100(2) of the Income Tax Act, the Defendant calculated the transfer price of the instant commercial building other than the instant portion subject to non-taxation as one house for one household, and calculated the transfer price and the acquisition price as one house for one household, by applying the individual housing price.

D. After that, on January 23, 2009, the Defendant issued a disposition of reducing KRW 38,692,850 from KRW 70,521,680 to KRW 38,692,850 on the ground that there is an error in the calculation, such as that the above transfer value should be changed to KRW 1,083,60,000,000. The Defendant issued a disposition of reducing KRW 31,828,830 from KRW 70,521,680 to KRW 38,692,850 on the ground that the said transfer value should be changed to KRW 1,08,60 (hereinafter “instant disposition”).

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

A. The plaintiff's principal

(1) The provisions of Article 100(2) of the Income Tax Act shall apply only when both the instant land and buildings are subject to taxation, and when the distinction between the value is unclear as they are acquired or transferred along with the instant land and buildings. In addition, as a result of the calculation calculated by analogically applying Article 100(2) of the Income Tax Act to distinguish between the acquisition and transfer value of the instant commercial building from non-taxable objects, the Defendant’s calculation of transfer margin of only the instant commercial building is in excess of KRW 166,340,719, and goes against the actual transaction details and the instant disposition is unfair in light of the principle of substantial no taxation without law and prohibition of excessive taxation. Therefore, the instant disposition is unlawful.

(2) In the instant case, even if Article 100(2) of the Income Tax Act can be applied mutatis mutandis, the instant disposition is unlawful without going through the process of adding up transfer losses incurred in the part of the housing subject to non-taxation, or by applying the standard market price instead of the individual housing price to the housing portion, even though it is necessary to eliminate such unreasonable consequences.

(b) Related statutes;

The entries in the attached Table shall be as follows.

C. Determination

(1) According to Articles 100(2) and 99(1) of the Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same), Article 166(6) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008); Article 48-2(4) proviso of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 2, 2008; hereinafter the same), where land and a building are acquired or transferred at the same time, they are separated and entered, and where the classification of the value is unclear, the land shall be entered, the land shall be the land price of the individual construction under Article 99(1)1(a) of the Income Tax Act; the house price of the building shall be calculated in proportion to the value calculated in accordance with the individual housing price under Article 99(1)1(b) of the Income Tax Act; and

(2) Meanwhile, while the instant land and a building were acquired and transferred en bloc, the instant housing part is exempt from taxation and the remaining commercial parts are subject to taxation. As such, since the distinction between the value of the land and the building acquired and transferred at the same time is unclear, in order to impose capital gains tax, the transfer value of the commercial building part needs to be determined internally. However, the Income Tax Act does not provide for the method of calculating the calculated tax under Article 100(2) of the Income Tax Act. In such a case, as seen earlier, whether the method of calculating calculated tax under Article 100(2) of the Income Tax Act can be applied or not

On the other hand, the interpretation of tax laws is interpreted as a law text, barring any special circumstance, by blocking the requirements for taxation or non-taxation or the requirements for tax exemption, and it is not allowed to expand or analogically interpret without reasonable grounds (see, e.g., Supreme Court Decision 92Nu18603, Feb. 22, 1994). However, in light of the principle of strict interpretation, it is inevitable and necessary to make a teleological interpretation in accordance with the motive, purport and purpose of the legislation and the social common sense within the scope that does not undermine the legal stability and predictability pursued by the principle of no taxation without the law without the law. In particular, while the taxation requirements are clear, if the calculation method is not clear or does not exist, the teleological interpretation does not impair the legal stability and predictability or the interests of the taxpayer.

However, in this case, considering the following circumstances acknowledged by the provisions of each of the above evidence and related Acts and subordinate statutes, ① the number of non-taxable assets of the instant portion at the time of acquisition, 309,412,50,000 won at the time of transfer, the Defendant calculated individual land price of the instant portion as the standard market price after applying Article 100(2) of the Income Tax Act, so it is difficult to readily conclude that the actual transaction value of the instant portion is less than 496,398,114 won at the time of acquisition of the instant portion, and thus, it is difficult to view the acquisition of the instant portion as 40,000 won at the time of acquisition of the instant tax base value, which is less than 10,00 won, and thus, it is difficult to apply the computation method of 20,000 won at the time of acquisition of the instant portion, which is less than 522,925,680 won at the time of acquisition of the instant portion.

Therefore, the disposition of this case is unlawful without examining the remainder of the plaintiff's remaining arguments, and thus, the plaintiff's claim of this case seeking revocation should be accepted.

3. Conclusion

Therefore, the judgment of the first instance court is unfair with different conclusions, and it is so decided as per Disposition by cancelling it and accepting the plaintiff's claim.