Suwon District Court 2007Guhap3010 ( October 17, 2008)

National High Court Decision 2006Da3761 (Law No. 21, 2007)

Market Price as to the Appellant of Wrongful Calculation

In light of the fact that the transaction was conducted on the premise that the building is demolished when calculating the market price of the land in this case, it is reasonable to view that the value of the building was the value of the land.

The contents of the decision shall be the same as attached.

1.The judgment of the first instance shall be modified as follows:

A. On March 22, 2007, the part exceeding KRW 2,076,530 among the disposition of imposition of global income tax of KRW 43,111,95 against the Plaintiff for the year 2003 and the part exceeding KRW 560,704,990 among the disposition of refusal of correction against the Plaintiff on May 4, 2007 shall be revoked.

B. The plaintiff's appeal is dismissed.

2. Of the total litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

1. Purport of claim

The Defendant’s disposition of imposition of global income tax of KRW 43,11,95 for the year 2003 against the Plaintiff on March 22, 2007 and the disposition of refusal of the Plaintiff’s request for correction against the Plaintiff on May 4, 2007 shall be revoked.

2. Purport of appeal

The decision of the court of first instance that ruled against the plaintiff falling under the following shall be revoked. The disposition of imposition of KRW 2,648,375 of the global income tax of KRW 43,111,95 against the plaintiff on March 22, 2007 and the disposition of refusal of correction against the plaintiff on May 4, 2007 shall be revoked.

1. Quotation of judgments of the first instance;

The reasoning of the judgment of the court is as follows: (a) 327.89 square meters on the 2nd day of the first instance court’s second instance judgment; (b) 37.64 square meters on the 2nd day of the second instance judgment; (c) 2,235,428,596 square meters on the 2nd day of the second instance judgment; (d) 2,335,428,596 square meters on the 3rd day of the above 4th day of the above 7th day after the 2nd day of the 3rd day of the above 4th day; (c) 4th day after the 2nd day of the above 1st day of the 2nd day of the 3rd day of the above 4th day judgment; and (d) 4th day after the 2nd day of the above 2nd day of the 2nd day of the above 7th day judgment, the 3th day after the 2nd day of the above 2nd day of the 2nd day below.

2. Additional parts; and

A. At the fourth place of the first instance judgment, betweenh and Hobbeh above, the following Plaintiff’s assertion shall be added:

No.4,635,428,596 won, which is the book value of each of the lands of this case, was calculated at the market price. However, the above book value includes the value of the above ○○○○-dong 5-dong 333 ground buildings (hereinafter referred to as “the building of this case”) and the acquisition tax, registration tax, appraisal commission, brokerage commission, etc. required to acquire each of the lands of this case (hereinafter referred to as “the incidental cost”), so it must be calculated except for the above.

(b) the following judgments shall be added between the seventh and the third highest one.

4) Determination as to the above argument

Comprehensively taking account of the overall purport of the pleadings with respect to 3,00 square meters of No. 5 and No. 8 (3,000,000 won) 4, 3,000,000 won for each of the above 6,000 won for 3,00,000 won for 4,000 won for 6,00 won for 6,000 won for 3,000,000 won for 6,000 won for 6,000 won for 6,000 won for 3,000,000 won for 6,000 won for 3,000 won for 6,000 won for 6,000 won for 6,000 won for 3,000 won for 6,00 won for 6,000 won for 6,00 won for 3,000 won for 6,000 won for 3,000 won for 2,000 won for each of the building.

The term "market price" in the denial of wrongful calculation means a price applied or deemed to be applied to sound social norms and commercial practices and normal transactions between persons without a special relationship (Article 52(2) of the Corporate Tax Act) or a price which is generally traded by a third party who is not a person with a special relationship in the situation similar to the transaction in question (Article 89(1) of the Enforcement Decree of the Corporate Tax Act).

However, in this case where the Doldong, a previous owner, such as the ○○ City theater, is deemed to be a normal transaction between unrelated parties, and the price applied to the transaction is deemed to be the market price, and thus, it is clear that expenses are not included in the price applied to the transaction. Thus, the price of the building of this case is determined and indicated separately under the sale and purchase contract. However, in light of the fact that the building of this case was traded on the premise that the building of this case is to be demolished, it is indicated as such for convenience, and it is reasonable to view that the total value of 16 billion won is the price of the building of this case, and in substance, it is reasonable to consider that 5 billion won was the price of the land of this case. Thus, the value of the building of this case should be included in the market price.

Therefore, the plaintiff's above assertion is justified within the above scope of recognition.

3.Terpared parts

5) Sub-committee

According to the above, the market price of each of the lands of this case is KRW 4,341,678,394 as seen above, and therefore, the amount to be disposed of to the plaintiff is KRW 1,020,839,197 [ KRW 4,341,678,394 KRW - 2.30 billion] ± (2]. Accordingly, when calculating a legitimate tax amount, the total income tax is KRW 560,704,97, KRW 2,076,530 as stated in the attached sheet.”

4. Conclusion

Therefore, the part of the disposition of this case exceeding KRW 2,076,530 and the part of the disposition of this case exceeding KRW 560,704,997 among the disposition of this case shall be revoked. Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remainder of the claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, it is so decided as per Disposition by accepting part of the plaintiff's appeal and changing the judgment of the court of first instance.