Kimpo-si

Law Firm Sejong, Counsel for the plaintiff-appellant

Attorney Choi Jin-su

A litigation performer Lee Jae-ok

2. The plaintiff's remaining claims are dismissed.

3. Litigation costs shall be borne by the Plaintiff.

A. On March 27, 2003, the Plaintiff contributed to the Non-Party Medical Corporation 00 Medical Foundation (hereinafter referred to as "the Non-Party Medical Corporation 00 Medical Foundation") on January 26, 2006, the amount of 160 - 10 - 10 - 10 - 160 - 19 - 936 m2 (hereinafter referred to as "each land of this case"), which was acquired in KRW 849,00,000, and acquired in KRW 00 (hereinafter referred to as "the contribution of this case"). (hereinafter referred to as "the contribution of this case").

B. At the time of the instant contribution, each of the instant lands was registered for the establishment of the mortgage-backed property of KRW 1,560,000, and at the same time, Nonparty National Agricultural Cooperative Federation of the Republic of Korea, and KRW 1,300,000, and at the same time, agreed to bear KRW 1,300,000 for the secured debt amount of the said mortgage-backed property.

C. Although the Plaintiff did not report capital gains tax in relation thereto, the Defendant deemed that the gift tax was made on February 10, 201, and conducted an investigation, the Defendant deemed that the amount of KRW 3,788,10,00 at the time of the instant contribution as the market price of each of the instant land, and determined the acquisition value of KRW 1,30,00,000, 291, 312, 211 (including the capital gains tax amount of KRW 89,953, 110, 541, 30, 300, 300, 300, 200, 296, 16, 205, 305, 16, 205, 205, 306, 206, excluding the capital gains tax amount of KRW 50,501, 205, 306, 45,000).

D. On March 31, 2011, the Tax Tribunal claimed that the standard market price of each land of this case shall be deemed the market price due to the Plaintiff’s objection, and it is difficult to recognize the appraisal price as the appropriate market price because the above appraisal price is unreasonable, but it is difficult to recognize the standard market price of each land of this case as the market price because the standard market price of each land of this case falls short of the amount of the amount of the amount of the obligation to be borne, thereby making a decision to re-examine the market price to correct the tax base and tax amount of capital gains tax (hereinafter “the first decision of the Tax Tribunal”).

E. Accordingly, on July 7, 2011, the Defendant received retroactive appraisal from two appraisal institutions, and deemed 2,146,590,000 won as the market price of each of the instant lands, and corrected the amount of 103,448,056 won from the existing tax amount (hereinafter “the remaining amount of tax imposed after reduction”) (hereinafter “the first ordinary disposition”) and filed a second appeal with the Tax Tribunal. On December 5, 2012, the tax Tribunal deemed the average amount of the above two retroactive appraisal values to be the market price for each of the instant lands, but the standard market price for each of the instant lands can not be applied at the market price for each of the instant lands, and the remaining amount of tax for each of the instant lands cannot be applied at the market price for 00,000,000 won as the first ordinary market price for each of the instant lands and 30,000,000,000 won as the tax base for taxation and tax amount for each of the instant lands.

F. Accordingly, on December 18, 2012, the Defendant imposed capital gains tax on each of the instant lands at KRW 1,300,00,000, 849,000, 700, transfer income amount, 382, 977,001 as KRW 360, 896, 387, 387 (including the amount of capital gains to be added to KRW 541, 338,000, 100, 100, 200, and 1,300, 86, 387 (including the amount of additional tax to be paid in bad faith, 13, 265, 108, 45, 706, 707, and 85) on the tax base, including the amount of capital gains tax to be imposed at KRW 541, 3338,505,205.

G. The Plaintiff appealed and filed the instant lawsuit on March 5, 2013. On November 6, 2013, the Defendant revoked ex officio the part imposing the penalty tax in the instant lawsuit, and subsequently imposed the penalty tax amount of KRW 13,265,108, and additional tax of KRW 40,69,731, and KRW 53,964,839 again on the Plaintiff on January 2, 2014 following the notice of pre-announcement of taxation, stating the tax base and the details of calculation of the amount of penalty tax, which was newly imposed on the Plaintiff (the final amount of penalty tax of KRW 137,871,720, KRW 53,964, KRW 539, KRW 839, and KRW 539,000, KRW 137,871, KRW 720, KRW 539, KRW 8391, KRW 196, KRW 5369, KRW 595).

[Ground for Recognition] Unsatisfy, Gap evidence 1 to 7 (including the number of branches, if any)

Note 1 to 8, each entry of Note 1 to 8.

2. Determination as to the legitimacy of the claim for revocation of the imposition of additional dues among the instant lawsuit

The Plaintiff sought revocation of the disposition of imposition of additional dues and aggravated additional dues as well as KRW 27,056, and KRW 550 ex officio. If the additional dues are not paid by the due date, the amount to be collected in addition to the notified amount pursuant to the National Tax Collection Act if the national tax is not paid by the due date, and the increased additional dues have the nature of compensation for delay incurred in whole or in part of the duty to pay taxes, and the additional dues have the nature of the damages for delay caused by the law as a matter of course without the due date for the payment without the due date for the additional dues. If the demand for the payment is unreasonable or procedural defect, the Plaintiff can seek revocation of the additional dues (see Supreme Court Decision 93Nu10521, Oct. 8, 1993). The additional dues and aggravated additional dues are not imposed by the Defendant, as stated in the Plaintiff’s purport, but are not imposed by the National Tax Collection Act and the increased additional dues (see, e.g., Supreme Court Decision 27,056, 500).

Therefore, the part of the lawsuit of this case seeking revocation of the imposition of additional dues and increased additional dues is unlawful as it is about the disposition without existence.

3. Determination as to whether a disposition imposing capital gains tax and additional tax is lawful

A. The plaintiff's assertion

(1) The latter part of Article 88(1) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same) provides that capital gains tax shall be imposed on the onerous donation. However, even though Article 159 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008; hereinafter the same) provides that the transfer value and acquisition value of the relevant asset shall be calculated by multiplying the value of the relevant asset by the ratio of the non-amount of the non-amount of the non-amount of the non-amount of the expenses to be incurred at all times by the value of the donation. Accordingly, it is recognized that only the acquisition value of the non-paid donor is recognized as the acquisition value, and ultimately, it does not violate the purpose of delegation of the Act, thereby extending the scope of taxation without legal basis.

(2) Even if the effect of Article 159 of the former Enforcement Decree of the Income Tax Act is recognized, there is the actual transaction value in light of the concept in the light of onerous donation.

Even when calculating gains on transfer, "the value of the donation" and "the value of the relevant asset" shall be calculated on the basis of the standard market price at all times, and since the part equivalent to the amount of debts in the amount of the donation cannot exceed the amount of the donation amount logically, the transfer value of this case shall be 343, 304,000 won in the standard market price, and the acquisition value shall also be 171, 776,000 won, which shall be the standard market price at the time of acquisition, and the transfer value shall be 171, 776,000 won in the difference.

(3) In addition, the Defendant committed an unlawful act of not disclosing the basis of imposition of penalty tax or the details of calculation while making the first disposition of correction and the second disposition of correction thereafter at the time of the initial disposition.

(b) Relevant statutes;

As shown in the attached Form.

(c) Determination.

(1) First, the validity of Article 159 of the former Enforcement Decree of the Income Tax Act is examined. Article 159 of the former Enforcement Decree of the Income Tax Act provides that the method of calculating the transfer value and the acquisition value of the portion to be deemed a transfer among the donated assets shall be calculated by multiplying the value of the relevant assets under Articles 96 and 97 (1) 1 of the former Income Tax Act by the ratio of the part equivalent to the amount of debts to the value of the donated assets. This provision provides for the method of calculating the transfer value and acquisition value in accordance with the latter part of Article 88 (1) of the former Income Tax Act, which provides that the assets equivalent to the amount of debts shall be deemed to be transferred at a cost among the donated values shall be deemed to be transferred at a cost, and it shall not be deemed to be in violation of the principle of no taxation without law, and there is no other ground to deem it null and void (see, e.g., Supreme Court Decision 200

(2) Next, we examine the value of the donation as follows.

(A) In the latter part of Article 88(1) of the former Income Tax Act, "the value of the gift" shall be deemed to mean the value of the gift property under Articles 60 through 66 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 1, 2010; hereinafter "former Inheritance Tax and Gift Tax Act") according to the common example. Therefore, "the value of the gift" shall be deemed to be the principle of calculating the market value of the gift as of the date of donation (Article 60(1) of the former Inheritance Tax and Gift Tax Act). If it is difficult to calculate the market value, the value of the real estate shall be appraised as the officially assessed value by the method stipulated in Article 61 of the former Inheritance Tax and Gift Tax Act, and in the case of the real estate whose mortgage, etc. is established, the larger amount between the amount of the secured debt and the value of the property appraised by the provisions of Articles 60 and 61 of the former Inheritance Tax and Gift Tax Act.

(B) In the instant case, there are only one appraisal value at the time of contribution of each of the instant lands, and there are no more than two appraisal values within the evaluation period set forth in the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter the same). Therefore, it is difficult to calculate the market price on the grounds that there are no more than two appraisal values within the evaluation period. The amount of secured claim of the right to collateral security established on each of the instant lands is 1,30,000,000 won as the donation date under Article 61 of the former Inheritance Tax and Gift Tax Act.

Since the appraised value of each of the instant lands exceeds 343, 304,000 won based on the current officially announced value, the gift value of each of the instant lands is KRW 1,30,000,000.

(3) We examine the third "value of the property in question".

(A) Each land of this case constitutes cases where "the value of the pertinent asset, which serves as the basis for calculating the transfer value and acquisition value, is to be calculated based on the actual transaction value." However, it is difficult to believe that the amount of debt taken over by the donee as a recipient of an asset is the actual transaction value corresponding to the relevant donated asset at the time of onerous donation. In calculating transfer margin, the actual transaction value, which is the basis for calculating transfer margin, refers to the actual transaction price itself or at the time of transaction, and the amount of debt taken over in the onerous donation, is highly likely to fall short of the total value of the relevant donated asset, and thus, it cannot be deemed as a consideration for all donated assets. Accordingly, for instance, it is reasonable to calculate the "value of the relevant assets" based on the standard market value, unless the amount of debt taken over by the donee falls short of the standard market value of the relevant donated asset (see, e.g., Supreme Court Decision 2007Du7176, Apr. 26, 2007).

(B) However, as in the case of this case, the value of the pertinent donated property should be calculated based on the actual market price in the designated area. If the amount of debt taken over by a donee from the onerous donation exceeds the standard market price, the amount of debt taken over is naturally interpreted as to Article 159 of the former Enforcement Decree of the Income Tax Act at the time of transfer. Such view is consistent with the purport of Article 96(1) and (2) of the former Income Tax Act, which provides that the transfer value and acquisition value of real estate located in the designated area shall be calculated based on the actual market price not based on the market price but based on the market price. If the standard market price at the time of transfer is considered as the value of each land at the time of transfer, regardless of whether the relevant real estate is located in the designated area, and as to the acquisition amount, it would result in the calculation of the transfer value at all times by the standard market price, so that it would be against the intent of Article 8(1) latter part of the former Income Tax Act and Article 96(2) of the former Income Tax Act.

Therefore, at the time of the Plaintiff’s acquisition of each of the instant lands, “the value of each of the instant lands” is reasonable to deem that the actual transaction would result in KRW 1,300,000,000, and “the value of the relevant assets at the time of transfer” as the amount of debt that was acquired (Article 159 of the Enforcement Decree of the Income Tax Act amended by Presidential Decree No. 20618, Feb. 22, 2008). In the foregoing purport, the value of assets, which is the basis for calculating the value of onerous donation, shall be based on the value assessed according to the provisions of Articles 60 through 66 of the former Inheritance Tax and Gift Tax Act, just as the value of donation, by explicitly stipulating that it shall be based on the value assessed according to the provisions of Articles 60 through 66 of the former Inheritance Tax and Gift Tax Act.

(4) Next, based on the above contents, the transfer value and acquisition value shall be calculated. In accordance with the provisions of Article 159 of the former Enforcement Decree of the Income Tax Act, the transfer value shall be 1,300,000,000 won X (the amount of debts 1,300,000,000: 1,30,000,000,000 won: the gift value shall be 1,30,000,000,000 won; the acquisition value shall be 849,00,000,000,000 won as at the time of acquisition; the Defendant’s tax amount shall be 1,30,00,000 won as at the time of disposal; and the Defendant’s tax assessment shall be 1,30,000,000 won as at the time of disposal, 300,000 won as at the time of disposal; and the Defendant’s tax assessment shall be 20,0000,000 won.

(5) Finally, we examine the illegality of the additional tax imposition procedure. Although there is no dispute that the Defendant did not disclose the detailed basis and details of the additional tax to the Plaintiff until the initial disposition and the secondary and secondary corrective disposition, the Defendant’s revocation of the imposition of the previous additional tax ex officio during the instant lawsuit and following the notice of tax notice stating the tax base and calculation details of the additional tax and the amount of the additional tax, on January 2, 2014, on which January 2, 2014, after the Defendant’s revocation of the imposition of the previous additional tax by ex officio and through the notice of tax notice stating the details of the calculation of the additional tax, additional tax 13,265, 108, additional tax 40,69, and additional tax 53, 964, 839, the sum of the additional tax 51,000 won for the failure to report to the Plaintiff. Accordingly, the imposition of the additional tax was lawful.

4. Conclusion

Therefore, the part of the claim for the revocation of the surcharge and increased surcharge among the lawsuits in this case is unlawful and thus dismissed, and the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.

/Gu Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009)

Article 88 (Definition of Transfer)

(1) For the purpose of Article 4 (1) 3 and this Chapter, the term "transfer" means that an asset is actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., without any connection with any registration or enrollment concerning such asset. In such cases, where a donee takes over any obligation of a donor of an onerous donation (excluding cases where it is harmful to the main sentence of Article 47 (3) of the Inheritance Tax and Gift Tax Act), the portion equivalent to the amount of such obligation among the value of donation shall be considered as the actual transfer for price of such asset.

Article 96 (Transfer Value)

(1) The transfer value of assets as prescribed in subparagraphs of Article 94 (1) shall be the actual transaction value between both Do governors and transferee at the time of transfer of the relevant assets (hereinafter referred to as "actual transaction value").

(2) Notwithstanding the provisions of paragraph (1), where assets provided for in Article 94 (1) 1 and 2 are transferred not later than December 31, 2006, the transfer value of such assets shall be based on the standard market value at the time of transfer of the relevant assets except for the cases falling under any of the following subparagraphs:

(b) Centrality)

7. Where the assets are real estates located within the designated area under the provisions of Article 104-2 (2);

(b) Centrality)

Article 159 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008) (Calculation of gains on transfer of onerous donation) Article 159 (Calculation of gains on transfer of onerous donation)

For the purpose of onerous donation under the latter part of Article 88 (1) of the Act, its acquisition value and transfer value in the calculation of both marginal profits on the portions to be deemed a transfer, shall be the amount calculated by multiplying the value of the relevant assets under Articles 96 and 97 (1) 1 of the Act by the ratio wherein the portions equivalent to the amount of debts from among the value of donations are differentiated.

/Gu Inheritance Tax and Gift Tax Act (amended by Act No. 9916 of January 1, 2010)

Article 60 (Principles, etc. of Assessment)

(1) The value of property on which an inheritance tax or gift tax is levied under this Act shall be based on the market price as of the date the inheritance commences or the date the inheritance commences (hereinafter referred to as "date of appraisal").

(2) The market price referred to in paragraph (1) shall be the value which is deemed to be normal in cases of free trade between many and unspecified persons, and shall include the expropriation and public auction price, appraisal price, and others which are deemed to be the market price as prescribed by Presidential Decree

(3) In the application of the provisions of paragraph (1), where it is difficult to compute the market price, the price assessed by the methods provided for in Articles 61 through 65 in consideration of the type, size, transaction status, etc. of the relevant property.

Article 61 (Appraisal of Real Estate, etc.)

(1) Real estate shall be appraised by the following methods:

1. The officially assessed individual land price under the Public Notice of Values and Appraisal of Real Estate Act (hereinafter referred to as "openly assessed individual land price"): Provided, That the value of land for which no officially assessed individual land price exists shall be the amount appraised by the method as determined by the Presidential Decree in consideration of the officially assessed individual land price of neighboring similar land, and the value which is appraised by the multiple method in respect of the land of the area as determined by the Presidential Decree, in which the land price rise rapidly;

Article 66 (Special Cases of Appraisal of Properties whose Mortgages, etc. are Established)

Notwithstanding the provisions of Article 60, the larger amount shall be the value of the property which is assessed in accordance with the Presidential Decree on the basis of the amount of rights, etc. and the value which is assessed in accordance with the provisions of Article 60 on the basis of the amount of rights, etc.:

1. Property whose mortgage or pledge is settled;

(B)

Article 49 (Principles of Evaluation, etc.) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008)

(1) For the purpose of Article 60 (2) of the Act, the term "those recognized as the market price, as prescribed by Presidential Decree, such as the expropriation or public sale price and the appraised price, etc." means, in cases where there is a sale, appraisal, expropriation or public sale (referring to an auction under the Civil Execution Act; hereafter the same shall apply in this paragraph) or a public sale (hereafter referred to as "sale, etc." in this paragraph) within six months before or after the evaluation base date (three months in the case of donated property; hereafter referred to as the "evaluation period" in this paragraph) or within the period of six months before or after the evaluation base date, the amount confirmed pursuant to any of the following subparagraphs:

1. Where there exists a fact of transaction on the relevant property, the transaction amount;

2. In case where there exists the amount of appraisal assessed by a reliable appraisal institution prescribed by the Ordinance of the Ministry of Finance and Economy with respect to the relevant property (excluding the properties provided for in Article 63 (1) 1 of the Act), the average value of the appraisal: Provided, That in case where there is the amount of appraisal which falls under one of the following items, the average value of the appraisal:

(a) Values which are not suitable for the payment purpose of inheritance tax and gift tax, such as the assessment of relevant property on the premise that certain conditions are met;

(b) The appraised value in cases where a person fails to appraise the relevant property in its original form as of the standard date of appraisal;

Article 63 (Appraisal of Properties for which Mortgage, etc. is Established)

(1) The term “value appraised under the conditions as prescribed by the Presidential Decree” in Article 66 of the Act means the amount falling under any of the following subparagraphs:

3. The value of assets on which the right to collateral security is created, shall be the amount of claims secured by the relevant assets as of the evaluation base date;