Article 48-2 (Method of Calculating Tax Base)

2. The costs of the lawsuit are assessed against the defendant.

A. The Plaintiff, as a real estate rental business entity, sold the land of this case and the land of this case, ○○○-dong ○○-92 large 386 square meters (hereinafter referred to as the “land of this case”) and the land of 1,002 and 1,002.75 square meters above the ground, to the non-party Yakdong Co., Ltd. (hereinafter referred to as the “non-party Yakdong Co., Ltd.”) for the first five stories above land (hereinafter referred to as the “the building of this case”). The Plaintiff sold the land of this case to the non-party Yakdong Co., Ltd. (hereinafter referred to as the “non-party 1”) for three billion won in the purchase price, and the registration of ownership transfer was completed on April 17, 2006. However, the Defendant calculated the sales price of the land of this case and the building of this case under the sales contract concluded between the Plaintiff and the non-party 1, calculated the value of the building of this case as 2061, 2516.7.5

C. On January 25, 2008, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on January 25, 2008, but was dismissed on August 28, 2008.

[Ground of recognition] Facts without dispute, Gap's 1, 2, 4, 11 (including each number in the case of additional numbers), Eul's 10 evidence, the purport of the whole pleadings

2. Determination on the legitimacy of the disposition

A. The parties' assertion

As to the defendant's assertion that the disposition of this case is legitimate in accordance with relevant Acts and subordinate statutes, the plaintiff sold the land of this case in KRW 2.6 billion, and the building of this case in KRW 400 million, and as such, despite the submission of a sales contract where the actual transaction price of the land and the building is divided, the defendant asserts that the supply price of the building of this case is determined differently and the disposition of this case is unlawful on the ground that it is unclear that the price of the land and the building of this case is divided based on

(b) relevant statutes;

Article 13 (Tax Base of Value-Added Tax Act)

Article 48-2 (Method of Calculating Tax Base)

C. Facts of recognition,

The following facts may be acknowledged in light of the following facts: Gap evidence 3 (the same as Eul evidence 2), Gap evidence 5-1 through 5, Gap evidence 6 (the same as Eul evidence 8), Gap evidence 7, Gap evidence 13, and 14-1, 2, Eul evidence 4, Eul evidence 5-1, 2, Eul evidence 5-9, and the purport of the whole pleadings in witness testimony at the ○○ Sea.

(1) After purchasing the instant land on or around January 6, 2003, the Plaintiff newly constructed the instant building on or around its ground. The said newly constructed construction works requires an amount of 50 million won (including value-added tax of 50 million won).

(2) In Ulsan-dong ○○○○○○○○○○○○○, including the instant land, the non-party company, which was conducting a new apartment construction project, concluded a service contract with the non-party corporation, ○○○○○○, Inc. (hereinafter “○○○”), and the ○○○, Inc. again delegated part of the above service work to the non-party ○○○, on September 2005.

(3) On February 27, 2006, the Plaintiff prepared a sales contract (Evidence A 3) stating that the instant real estate shall be paid within eight months from the date of the contract or within thirty days from the approval of the project, on the one hand, between the non-party company and the non-party company on the other hand, the sale price of the instant land shall be KRW 3 billion; the sale price of the instant building shall be KRW 2.6 billion; and the purchase price of the instant building shall be KRW 400 million; and the down payment shall be KRW 300 million upon the completion of the purchase contract for 90% from the site of the said apartment construction project; and the remainder KRW 2.7 billion shall be paid within eight months from the date of the contract or within thirty days after the approval of the project (see Supreme Court Decision 2007Da76367, Mar. 13, 2008).

(4) On March 7, 2006, Nonparty Company paid KRW 300 million to the Plaintiff the sales contract amount for the instant real estate.

(5) After March 25, 2006, the Plaintiff: (a) sold the instant real estate in KRW 3 billion; and (b) drafted a sales contract (Evidence B) stating that KRW 300 million shall be paid on the contractual day and the balance amount of KRW 2.7 billion shall be paid on April 14, 2006; and (c) the said sales contract does not stipulate any special terms that distinguish the transaction prices of the instant land and buildings.

(6) On the other hand, ○○○ DNA prepared the “compensation Standard Data” (Evidence B) which evaluates the value of the instant building as KRW 621,40,000,000, prior to the consultation on the purchase price with the Plaintiff, and assessed the value of the instant building as KRW 1,124,60,000, respectively.

D. Determination

(1) Article 48-2(4) of the Enforcement Decree of the Value-Added Tax Act provides that where an entrepreneur supplies both land and a building built on such land, the supply price of the building shall be based on the actual transaction price. However, in cases where the distinction between the land price and the building price is unclear among the actual transaction price, the standard for calculating the supply price of the building is also applicable to the case where the entrepreneur’s supply price of the building subject to value-added tax is not differentiated from the supply price of the building subject to value-added tax at the time of supplying the land and the building built on such land, and where both values are unclear, it is reasonable to interpret that the provision shall not apply to cases where the supply price of the building built on account books and other documentary evidence under tax-related Acts is entered differently from the value of the land, unless it is recognized that there is any falsity or omission (see, e.g., Supreme Court Decision 89Nu169, Dec. 26, 198).

(2) However, the facts that the sale contract between the plaintiff and the non-party company clearly distinguish the price of the building from the price of the non-party company on February 27, 2006 are as mentioned above. Thus, the defendant's assertion that the price of the building is not the actual transaction price is not the actual transaction price shall bear the burden of proving the facts that the price of the building is false. Thus, it is not sufficient to recognize the facts by only the statement of Nos. 4 and 9, and there is no other evidence to prove that the price of the building in the sale contract between the plaintiff and the non-party company on February 27, 2006 falls under the case where the price of the building in this case is false or the difference between the price of the building and the actual transaction price is unclear. Thus, the disposition in this case is unlawful [According to the above facts of recognition, the sale contract (No. 4) between the plaintiff and the non-party company on March 25, 2006 is the contract for the execution of the approval of ownership transfer registration procedure of the real estate in this case, and the purchase price data 9.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.