Plaintiff

The Director of Gangnam District Office

July 8, 2011

Seoul Administrative Court Decision 2009Gudan16124 decided May 18, 2010

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of capital gains tax of KRW 419,262,930 against the plaintiff on February 6, 2009 shall be revoked.

1. Quotation of judgment of the first instance;

이 법원이 이 판결에 적을 이유는, 제1심 판결 이유 중 제2의 다. (2)항 ㈏목 부분(제1심 판결문 제5면 제16행부터 제7면 제14행까지)을 아래 제2항과 같이 고쳐 쓰고, 당심에서의 원고의 새로운 주장에 대한 판단과 정당한 세액 계산에 관한 부분을 아래 제3항과 같이 추가하며, 당심에서 추가로 제출·조사된 증거로서 제1심이 인정한 사실을 뒤집기에 부족한 증거로 갑 제19, 22호증의 각 기재와 당심증인 소외 2의 증언을 추가하는 외에는 제1심 판결의 이유 기재와 같으므로 이를 인용한다.

2. Parts to be dried;

Whether the transfer value of the 1, 2 sites and buildings of this case calculated by the Defendant is legitimate

First, the amount of the actual transfer value (4.5 billion won) claimed by the Plaintiff is recognized, but it is legitimate to calculate the transfer value based on the calculated amount according to the ratio of the standard market price pursuant to Article 100(2) of the former Income Tax Act (amended by Act No. 7873 of March 3, 2006; hereinafter the same) instead of recognizing the actual transfer value of the land (2.5 billion won) and the building (2 billion won) claimed by the Plaintiff.

According to the whole purport of Gap's evidence Nos. 2, 20, 21, and Eul's evidence Nos. 3 and the whole purport of oral argument, the plaintiff, on March 8, 2006, classified the land price into 2.5 billion won under a special contract at the time of entering into a sales contract to transfer the real estate of this case to Eul Estecom (hereinafter "the non-party company"), and classified the price of the building into 2.5 billion won, and the price of the building into 2 billion won (60 billion won for the house price). Since then, the plaintiff reported the sale price of the above building as value-added tax and paid the value-added tax accordingly. The defendant also confirmed the authenticity of the transaction details by obtaining the payment and remittance receipt, remittance certificate, transaction partner, director, acquisition tax and tax payment receipt, etc. related to the transfer of the real estate of this case from the non-party company.

As seen earlier, barring any special circumstance, the tax authority should prove that the sales contract, etc. originally submitted by the transferor as documentary evidence as to the actual transaction price is deemed to have been prepared as a content of the contract between the parties, and that there are other special circumstances. However, in light of the circumstances that report the value-added tax to the tax office or make entries in the relevant books on the basis of the above, the Plaintiff and the non-party company, as alleged by the Defendant, did not present specific grounds for assessing the transfer value of the sites 1, 2, and buildings of this case as KRW 2.5 billion, as alleged by the Defendant, but there is no difference between the officially announced value at the time of transfer and the officially announced value at the time of transfer, or that the market value of the building of this case was much higher than the amount stipulated in the above special agreement, and there is no evidence to acknowledge otherwise.

According to this, it is unreasonable for the Defendant to calculate the transfer value on the basis of the calculated amount according to the ratio of the standard market price pursuant to Article 100(2) of the former Income Tax Act without recognizing the actual transfer value of the land and buildings of the instant case asserted by the Plaintiff. The Plaintiff’s assertion on this part is with merit (However, as seen in the “Calculation of the lawful tax amount” of the following, the instant disposition cannot be deemed unlawful).

3. Additional determination

A. In the trial, the following judgments shall be added to the new argument of the Plaintiff.

(1) The plaintiff's assertion

The Plaintiff asserts that the acquisition value should be calculated by deeming the minimum amount among the appraisal values calculated by requesting a retroactive appraisal to two appraisal institutions certified by the Plaintiff as the actual transaction value of the instant land pursuant to Article 97 (1) 1 (b) of the former Income Tax Act.

(2) Determination:

In a case where there exist the appraisal values (limited to those whose appraisal base date is within three months before and after the date of transfer or the date of acquisition respectively) which are appraised by two or more certified public appraisal corporations on the relevant assets within three months before and after the date of transfer or the date of acquisition respectively, the average value of such appraisal values means the average value of such appraisal values [see Article 176-2 (3) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19463, Apr. 28, 2006)].

However, according to the evidence evidence evidence Nos. 23 and 24, each of the instant sites was assessed against Sym 1 and 2, but the time when the Plaintiff acquired each of the instant sites is recognized as around February 201, which was far more than three months after the time of the Plaintiff’s acquisition of each of the said sites. Thus, each of the retroactive appraisal values cannot be deemed as the appraisal values that can substitute the actual transaction values under the former Income Tax Act (see Supreme Court Decision 96Nu860, Feb. 11, 1997). Ultimately, the Plaintiff’s above assertion is without merit without any need to further examine it.

(b)as of the 12th decision of the first instance, the following shall be added:

“(4) The calculation of a reasonable amount of tax.”

In accordance with the above determination, a reasonable tax amount at the time of the transfer of the instant real estate shall be calculated. As seen earlier, the transfer value of the instant real estate Nos. 1 and 2 is recognized as the actual transaction value (land Nos. 2.5 billion won, building No. 2 billion won, and housing No. 600 million won) as alleged by the Plaintiff. However, as long as the Plaintiff did not separate the actual transaction value by the instant land Nos. 1 and 2 and separate the actual transaction value by the relevant building site and site, the individual transaction value of each of the instant real estate, the Plaintiff’s share ratio of which is different, shall be divided into the actual transaction value of the instant real estate at the time of the transfer of the land (2.5 billion won) and the housing (60 million won) according to the ratio of the standard market value at the time of the transfer. In addition, in calculating the acquisition value of the instant real estate, there is no business example, appraisal value, and the amount converted into the real transaction value at the time of the instant disposition, which the Defendant recognized the total transfer cost to be deducted from the necessary expenses.

According to the above, even if the defendant erred in calculating the transfer value of the real estate in this case, unless the transfer income tax (419,262,930 won) imposed and collected by the plaintiff does not exceed the legitimate tax amount (443,932,250 won) to be borne by the plaintiff, the original taxpayer, the disposition of this case cannot be deemed unlawful (see Supreme Court Decision 2004Du3823, Jun. 15, 2006, etc.). Ultimately, the plaintiff's assertion cannot be accepted.

4. Conclusion

Therefore, the judgment of the court of first instance is justifiable, and the plaintiff's appeal is dismissed, and it is so decided as per Disposition.

[Attachment Form No. 3]

Judges Kim Jae-sik (Presiding Judge)