Suwon District Court 2016Gudan9262 (No. 12, 2017)

Early High Court Decision 2016J 2162 (2016.05)

Whether the appraised value at the time of transfer can be recognized as acquisition value

In light of the appraisal value at the time of expropriation, it is difficult to accept the proposal for the claim because there is no objective evidentiary data, and there is no legal basis to regard the amount of compensation at the time of expropriation as the acquisition value.

Transfer Income Tax Act

Seoul High Court 2017Nu51534 (20 December 20, 2017)

Kim*

○ Head of tax office

Suwon District Court Decision 2016Gudan9262 Decided December 2, 2017

2017.09.06

2017.20

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 rejection to correct or reject capital gains tax against the plaintiff on May 13, 2016.

(b) revoke the subsection (3).

1. The reasoning of the judgment of the court of first instance is as follows: (a) the relevant part of the judgment of the court of first instance is modified as stated in the reasoning of the judgment of the court of first instance, except to supplement or add the judgment as stated in the following paragraph (3); and (b) such part is cited as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence

2. Revised parts

○ 5 below the second "The amended Act of the Income Tax (wholly amended on December 22, 1994)" shall be added

“The date of fictitious acquisition” of the last five pages shall be added to “the date of fictitious acquisition” [the assets (land or buildings) as stipulated in subparagraph 1 of Article 94 and acquired before December 31, 1976 shall be considered to have been acquired on January 1, 197].

3. Supplement of judgment and additional purport are as follows. Article 97 (1) 1 (b) of the Income Tax Act provides that where one of the necessary expenses to be deducted from the transfer value in calculating gains on transfer shall be the actual transaction value at the time of acquisition, if it is impossible to verify the actual transaction value at the time of acquisition, it shall be the transaction example, appraisal value or conversion value prescribed by Presidential Decree. Article 163 (12) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24356, Feb. 15, 2013) provides that "business example, appraisal value or conversion value prescribed by Presidential Decree" in subparagraph 1 (b) of Article 97 (1) 1 of the Act means the value stipulated in Article 176-2 (2) through (4), and the main sentence of Article 176-2 (3) shall be limited to the amount calculated by applying the average appraisal value at the time of acquisition by the appraisal corporation to the appraisal value at least 7 months before and after the date of acquisition by the appraisal value:

On November 6, 2014, the appraisal by the appraisal corporation claimed by the Plaintiff is merely an appraisal at the time of expropriation (transfer) of the land and building owned by the Plaintiff, and it does not exceed 3 months before and after the acquisition date of the attached facilities, which the Plaintiff claimed to have been installed during several years from around 2006, and thus, the said appraisal value cannot be deemed as the acquisition price of the attached facilities of the mass hold under the Income Tax Act.

The plaintiff's assertion on a different premise is without merit.

[Plaintiff's application for the resumption of pleading by proving the appraised amount of attached facilities (capital expenditure amount) through a fact-finding request against the above three appraisal corporations. However, as recognized in the judgment of the first instance court cited by this court, "capital expenditure amount" refers to the expenses disbursed to extend the service life of transferred assets or to increase the real value thereof, or the expenses disbursed for altering, improving or using the purpose of use, etc., and the amount to be proved by the Plaintiff is not the expenses actually disbursed but the appraised value, and thus, it is not accepted the Plaintiff's application for the resumption of pleading.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the first instance court with the same conclusion is just, and the plaintiff's appeal is dismissed as it is without merit.