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(영문) 부산지방법원 2008. 08. 28. 선고 2008구합1109 판결
실지거래가액에 의한 취득가액을 환산하여 과세한 처분의 당부[국승]
Title

propriety of a disposition imposing tax by converting acquisition value based on the actual transaction price;

Summary

In calculating the gains on transfer of apartments whose actual transaction value at the time of its acquisition is not confirmed, any disposition taxable by deeming the conversion value as prescribed by the Presidential Decree shall be justifiable.

Related statutes

Article 96 (Value of Transfer)

Article 100 (Calculation of Gains from Transfer of Gu Income Tax)

Text

1. The plaintiff's claim is dismissed.

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

Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 9,337,420 against the Plaintiff on December 14, 2006 shall be revoked.

Reasons

1. Details of the disposition;

A. On September 5, 1990, the Plaintiff acquired and owned ○○○-dong, Busan, ○○○-8 main apartment (hereinafter “previous apartment”) 00,000,000. The previous apartment was included in the reconstruction project of ○○dong, and registered as a trust to the reconstruction association on June 16, 2001, and the previous apartment was destroyed due to the implementation of the reconstruction project on July 31, 2002.

B. On May 8, 2006, the Plaintiff supplied ○○○○○○○○○○○○○○○○○○○○○○○○, 000 000 dong (hereinafter “instant apartment”) from the said reconstruction association, and completed the preservation registration under the Plaintiff’s name on May 8, 2006, the Plaintiff donated to Lee Sung-sung, an onerous donation including KRW 190 million for the financial obligations of the collateral security property established on the instant apartment on May 22, 2006, and completed the registration of ownership transfer in the name of Lee Sung-sung around May 23, 2006.

C. On July 19, 2006, the Plaintiff filed a revised return on the tax base of capital gains tax on KRW 190,00,000, acquisition value of KRW 237,010,491 (acquisition tax base of KRW 146,940,491 + settlement money payment of KRW 90,070,00), gains - 47,010,491, while filing a revised return on October 10, 2007 with the acquisition value of KRW 206,260,00 (2/3 of the sale value of KRW 309,390,000) and gains -16,260,000, respectively.

D. On this basis, the defendant calculated the conversion acquisition value under Article 176-2 (2) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890, Feb. 28, 2007; hereinafter referred to as the "Enforcement Decree of the Act") as 108,253,720; transfer margin as 76,785,340 won [transfer value 190,000,000 - (acquisition value 108,253,720 + necessary expenses + 4,960,940 won + necessary expenses + 4,940 won)]; based on this, on December 14, 2006, the defendant notified the plaintiff of the disposition of imposition of transfer income tax 9,337,420 won reverted to year 206 (hereinafter referred to as the "disposition of this case").

E. On June 1, 2007, the Plaintiff, who was dissatisfied with the instant disposition, requested a trial to the National Tax Tribunal, but was dismissed on December 10, 2007.

[Reasons for Recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1 to 3 evidence (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In calculating the acquisition value of the apartment of this case, the price determined by the management and disposal plan pursuant to Article 166 (3) of the Enforcement Decree of the Act shall be the acquisition value. The defendant calculated the acquisition value by applying Article 166 (3) of the Enforcement Decree of the Act and Article 176-2 (2) 2 of the Enforcement Decree of the Act. The disposition of this case is unlawful.

(b) Related statutes;

Article 96 (Value of Transfer)

Article 100 (Calculation of Gains from Transfer of Gu Income Tax)

Article 114 (Determination, Revision and Notification of Tax Base and Amount of Tax for Transfer Income)

Article 159 (Calculation of Gains on Transfer of Unpaid Donation)

Article 166 (Calculation, etc. of Gains on Transfer)

Article 176-2 (Estimated Decision and Revision)

C. Determination

(1) In the calculation of gains from transfer, Article 100 of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006; hereinafter referred to as the "Act") provides that in the calculation of gains from transfer, if the transfer value is based on the actual transaction value, the acquisition value shall also be based on the actual transaction value, and if the transfer value is based on the standard market price, the acquisition value shall also be based on the standard market price. Article 96 of the Act provides that the principle of the actual transaction value at the time of calculating the transfer value under paragraph (1) and the exception to the standard market price method applicable only to the transfer portion from paragraphs (2) to December 31, 206 (each subparagraph of paragraph (2) provides that the exception to the standard market price method is not applied again), and Article 114 (5) of the Act provides that where the transfer value or acquisition value is based on the actual transaction value, and where it is impossible to recognize or confirm the actual transaction value at the time of transfer or acquisition by the books or other documentary documents, the transfer value or acquisition value may be determined by 1.

(2) In light of the above relevant Acts and subordinate statutes, since the apartment of this case constitutes real estate within one year after acquisition under Article 96 (2) 4 of the Act (the fact that the plaintiff completed the registration of transfer on the ground of onerous donation to Lee Sung-sung on May 8, 2006 after the preservation registration of the apartment of this case was made on May 23, 2006) and its transfer value shall be based on the actual transaction value (the plaintiff also filed a report of transfer value based on the actual transaction value at the time of preliminary return and revised return of transfer income tax base), and its acquisition value shall be calculated based on the actual transaction value according to the same principle. The defendant was unable to recognize or confirm the actual transaction value at the time of the acquisition of the apartment of this case by implementing a reconstruction project without actual transaction. The defendant determined the acquisition value by estimation pursuant to Article 114 (5) of the Act and Article 176-2 (2) 2 of the Enforcement Decree of the Act, and the defendant's disposition of imposition of this case is legitimate.

(3) On this ground, the Plaintiff asserts that the acquisition value of the instant apartment should be calculated pursuant to Article 166(3) of the Enforcement Decree of the Act, but Article 166(3) of the Enforcement Decree of the Act applies to cases where a member of the housing reconstruction association transfers the status of being selected as an occupant when examining the contents of Article 166(1) and (2) of the same Act. Thus, the above provision cannot be deemed to apply to this case where the Plaintiff transferred the status of being selected as the occupant of the housing reconstruction association after the Plaintiff’s completion of preservation registration in its name. Thus, the Plaintiff’s assertion is without merit (see, e.g., Supreme Court Decision 166(5)3 of the Enforcement Decree of the Act, even if it appears that the Plaintiff’s assertion is to be subject to Article 166(5)3 of the Enforcement Decree of the Act (see, e.g., Supreme Court

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

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