(영문) 수원지방법원 2007. 05. 16. 선고 2006구합5909 판결

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(영문) 수원지방법원 2007. 05. 16. 선고 2006구합5909 판결

공시지가가 없는 분할토지에 대해 감정가액으로 양도가액을 결정할 수 있는지 여부[일부패소]

Title

Whether the transfer value may be determined with the appraisal value of the partitioned land without the officially announced land price.

Summary

It is reasonable to calculate the transfer value based on the appraisal value of the land without a publicly assessed individual land price, but it is unreasonable to calculate the officially assessed value based on the 2.27th day of the appraisal base date, even though the officially assessed land price was based on January 1 of each year. Therefore, the Plaintiff

Related statutes

Article 96 of the Income Tax Act (before the amendment of the Act on December 31, 2005) shall be calculated on the basis of the standard market price under Article 99 of the Income Tax Act (before the amendment of the Act on December 31, 200

Text

1. The Defendant’s disposition of imposition of capital gains tax of KRW 44,909,050 against the Plaintiff on July 4, 2005 exceeding KRW 43,740,540 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Ten percent of the costs of lawsuit shall be borne by the plaintiff and the remainder by the defendant.

Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 44,909,050 against the Plaintiff on July 4, 2005 shall be revoked.

Reasons

1. Details of the disposition;

A. On November 1, 1996, the Plaintiff purchased the same ○○○○○○○○○○○, prior to the subdivision, and the same ○○○○○○, prior to the subdivision, prior to the subdivision, and completed the registration of ownership transfer on January 16, 1997.

B. On February 3, 2004, the land of ○○-dong prior to the division was divided into 0-1 square meters in the same Dong, which is the same ○-1 square meters prior to the division. The land of ○○-dong prior to the division was divided into 0-1 square meters in Dong, 000 square meters in the same way as ○-1 square meters in the same place on August 11, 2003. The land of ○-1 is registered as ○○-1 square meters prior to the same ○○○-1 square meters in the same place on the same day. The said land was converted into ○○○-1 square meters prior to the Dong, and was divided into ○○-1 square meters in the same way on February 3, 2004 (hereinafter referred to as “the land of this case”). (The registration of division was completed on the same day).

C. On June 25, 2004, the ○○○○○○ Land Corporation consulted on and completed the registration of ownership transfer on June 29, 2004 by acquiring the said land from the Plaintiff, ○○○○○○○○○○○○○○ Land, the same as the said ○○○○○○ Land, and the instant land. On August 1, 2003, the Plaintiff calculated the amount of KRW 10,318,290 as capital gains tax from the transfer of the said three lots of land. On August 31, 2004, the Plaintiff calculated the amount of KRW 12,300 as the standard market price at the time of acquisition and transfer on January 1, 1996, deeming that there was no officially announced land price for the instant land at the time.

D. Thereafter, on October 12, 2004, the Plaintiff calculated the officially assessed individual land price of 24,000 won as of January 1, 1996 and the officially assessed individual land price of 45,100 won as of January 1, 2003 as the standard market price at the time of acquisition and transfer, and additionally paid KRW 17,291,09,096.

E. On July 4, 2005, the Defendant calculated capital gains tax of KRW 70,148,90,90,050 (including additional taxes) as the standard market price at the time of acquisition on the instant land by applying the same amount of KRW 12,300, Jan. 1, 1997, the officially assessed individual land price of KRW 12,300 as the standard market price at the time of transfer, and the two appraisal corporations calculated by requesting appraisal on February 27, 2004, which is the date of the registration of the division, on the ground that there is no land category change under the intellectual law as the standard market price at the time of transfer, and subsequently corrected and notified the remainder of KRW 44,90,050 (including additional taxes) other than the amount already paid by the Plaintiff.

[Ground for Recognition] In the absence of dispute, Gap evidence 1-1, Eul evidence 2, Gap evidence 4, 5, 8, 10, 11-1, 2, Gap evidence 6-1 through 3, Gap evidence 7-1 through 6, Gap evidence 15-4, Eul evidence 1-1 through 4, Eul evidence 2-1 and 2-2

2. Determination of legality of disposition

A. The plaintiff's assertion

(1) In calculating the acquisition value of the instant land, if the officially announced value of ○○-dong forest land, which is a single parcel number, was applied, the Defendant applied the officially announced value of the said land in calculating the transfer value, but otherwise, the Defendant applied the officially announced value of the said land. Furthermore, on June 29, 2004 when the ○○ Land Corporation acquired the instant land by consultation, it was before the publicly announced value on January 1, 2004, and thus, even if the appraised value is applied, the appraised value as of January 1, 2003 was applied. However, unlike this, the Defendant applied the appraised value as of February 27, 2004.

(2) In order to apply the appraised value of the land of this case as the transfer value of the officially assessed individual land price under the premise that the land category was previously transferred, even though Article 100(1) of the Income Tax Act is applied or analogically applied to calculating the acquisition value, the appraised value by deeming the land category as before the land category, the Defendant applied the officially assessed value of the land of ○○-dong

(3) The appraised value of the instant land (including the appraised value of the court) is significantly higher than the officially assessed individual land price as of January 1, 2003, 00 ○○○-dong, ○○○○○-dong, much more favorable conditions than the assessed individual land price.

(4) The portion of 00 square meters of 00 square meters of 00 square meters of forest land in ○○○-dong, ○○○○-dong, including the instant land, was used only as forest land and field since 200 years ago. The Plaintiff changed the land category to receive compensation prior to the actual status. As for other similar land owners in neighboring areas, capital gains tax shall be imposed by applying the officially announced land value, which is a forest land category in the public record, and the Plaintiff’s application of the officially announced land value based on the previous land value to the Plaintiff for the purpose of receiving compensation, is contrary to

(b) Related statutes;

(1) Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)

Article 94 (Scope of Transfer Income)

(1) Transfer income shall be the following income generated in the current year:

1. Income accruing from transfer approval of land (referring to a lot of land subject to registration of land category in the cadastral record under the Cadastral Act) or buildings (including the facilities and structures annexed to such buildings);

Article 96 (Transfer Price)

(1) The transfer value of assets as prescribed in Article 94 (1) 1 and 2 shall be based on the standard market value at the time of the transfer of the relevant assets: Provided, That where the relevant assets fall under any of the following subparagraphs, it shall be based on the actual transaction value between the transferor and transferee (hereinafter referred to as the "actual transaction value"):

Article 97 (Calculation of Necessary Expenses in Transfer Income)

(1) In the calculation of gains on transfer of a resident, the necessary expenses to be deducted from the transfer value shall be as follows:

1. Acquisition value:

(a) In case of assets under Article 94 (1) 1 and 2, the standard market price at the time of acquisition of the assets concerned: Provided, That in case where the assets concerned fall under any of subparagraphs of Article 96 (1), it shall be based on the actual transaction price required for the acquisition of such assets;

Article 99 (Computation of Standard Market Price)

(1) The standard market price pursuant to the provisions of the main sentence of Article 96 (1), the main sentence of Article 97 (1), the main sentence of Article 1, Articles 100 and 114 (5) shall be as follows:

1. Land or buildings under the provisions of Article 94 (1) 1:

(a) Land;

The individual officially assessed land price under the Public Notice of Values and Appraisal of Lands, etc. Act (hereinafter referred to as the “individual assessed land price”): Provided, That the value of land for which no officially assessed individual land price exists shall be the amount assessed by the head of the district tax office having jurisdiction over the place of tax payment by the method as determined by the Presidential Decree in consideration of the officially assessed individual land

Article 100 (Calculation of Gains on Transfer)

(1) In calculating the gains from transfer, the transfer value shall be based on the actual market value (including the value provided for in Article 96 (3) and the relevant transaction example value, appraisal value, and conversion value in cases where the transaction example value, appraisal value, and conversion value are applied pursuant to Article 114 (5)), and when the transfer value is based on the standard market value, the acquisition value shall also be based on the

(1) Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005)

Article 164 (Assessment of Standard Market Price of Land and Building)

(1) The “amount appraised by such a method as prescribed by the Presidential Decree” in the proviso of Article 99 (1) 1 (a) of the Act means the amount appraised by the head of the district tax office having jurisdiction over the place of tax payment (where there is a difference between the head of the district tax office having jurisdiction over the place of tax payment and the head of the district tax office having jurisdiction over the location of the relevant land, if there is a difference between them), pursuant to the comparative table under Article 10 (2) of the Act on Public Notice of Land Price and Appraisal of Land, etc., by deeming the land having no officially assessed land price falling under any of the following subparagraphs and the neighboring land having similar factors to form the land price, such as

1. Newly registered land under the Cadastral Act;

2. Any land partitioned or merged under the Cadastral Act;

3. Land whose land category has been changed due to changing the form and quality of land or change of use;

4. Land for which the determination and public announcement of the officially assessed individual land price are omitted (including State and public land);

(3) In the application of Article 99 (1) 1 (a) of the Act, where any acquisition or transfer is made before the new standard market price is publicly announced, it shall be based on the immediately preceding standard

C. Determination

(1) Calculation of transfer value

According to the provisions of Article 99 (1) 1 (a) of the Income Tax Act and Article 164 (1) 2 and 3 (2) of the Enforcement Decree of the Income Tax Act, the standard market price which serves as the basis for calculating the acquisition price and the transfer price shall be determined based on the officially assessed individual land price. The land price of which no officially assessed individual land price has been changed due to changes in the land category due to changes in the form and quality of land or changes in the use of land divided under the Cadastral Act shall be assessed by the comparison table under Article 9 (2) of the Public Notice of Values and Appraisal of Real Estate Act by deeming neighboring land whose factors such as land category and utilization are similar as the standard land

As seen earlier, on August 11, 2003, 00 ○○○○○○○, prior to the division, was divided into the same ○○○, Dongsan Forest, and at the same time, the land category was changed to that prior to the registration conversion. On February 3, 2004, since the instant land was divided from the ○○○○, prior to the said division, the instant land constitutes a land with no officially assessed land price due to the division and land category change as of June 25, 2004, which is the transfer date, and thus, it is lawful to calculate the transfer value by applying the value assessed by the Defendant by taking account of the appraised agency’s appraisal and assessment value of the instant land as the standard market price, and the Plaintiff’s assertion on this point is without merit.

Furthermore, pursuant to Article 164 (3) of the Enforcement Decree of the Income Tax Act, in case where a new standard market price is transferred before a public notice is given, it shall be based on the immediately preceding standard market price. The transfer date of this case is the same as the fact immediately preceding June 30, 2004 publicly notified by the officially announced individual land price on June 1, 2004. However, although the above provision is based on the standard market price, it is a supplementary provision in light of the fact that the actual standard market price is publicly notified later than the standard market price. On the other hand, in this case, since the officially assessed individual land price, which is the standard market price, is not in itself, and the amount assessed by the method as prescribed by the Presidential Decree in consideration of the officially assessed individual land price of neighboring land under Article 9 (1) 1 (a) of the Enforcement Decree of the Income Tax Act, is not applicable, and since Article 164 (3) of the Enforcement Decree of the Income Tax Act does not apply.

However, in light of the fact that the officially assessed individual land price is ordinarily the base date of January 1 of each year and that the time of correction is not made in applying the same, in cases where the amount assessed by the method prescribed by the Presidential Decree taking into account the officially assessed individual land price of neighboring similar land pursuant to the proviso to Article 99 (1) 1 (a) of the Income Tax Act and Article 164 (1) of the Enforcement Decree of the same Act due to division, etc. as in the instant disposition, the value shall be assessed as of January 1, 2004, which is the base date immediately before the registration date of the division, rather than the registration date of the division. In full view of the purport of the arguments in the statement in subparagraph 2-1 and 2, in the Dong state appraisal corporation and the Korea Appraisal Board, it is recognized that the appraisal price of the land of this case is 67,000 won or larger as of January 1, 204, and the appraisal price of this case is finally assessed within 000 won or more, which is the basis date of the appraisal.

(2) Calculation of acquisition value

Article 100 (1) of the Income Tax Act provides that when the transfer value is calculated based on the actual transaction value (including the value under Article 96 (3) and the value under Article 114 (5) where the value of transaction example or the appraised value is applied pursuant to Article 114 (5)), the acquisition value shall also be calculated based on the actual transaction value (including the value under Article 97 (7) and the value under Article 114 (5) where the value of transaction example or the appraised value is applied pursuant to Article 114 (5)), and when the transfer value is calculated based on the standard market price, the acquisition value shall be calculated based on the standard market price. This is for the purpose of avoiding the unreasonable result that differs from the actual transaction value or other equivalent transaction example or appraisal value. In light of this purport, the "appraisal value" in the above provision is interpreted to mean the value of the actual transaction value equivalent to the actual transaction value, and in the case of this case where there is no individual land price due to a division or a change of land category, not the appraisal value in the market price under Article 10 (2).

Furthermore, even if the land of this case was cultivated from the original ○○-dong Forest, which had been divided into an orchard or electric field for a period of several hundred years before it was divided into ○○-dong Forest, and the Plaintiff’s land category was changed to the previous land category in order to receive compensation according to its actual status, it cannot be applied under the circumstances without any explicit provision. If the Plaintiff’s assertion is, the remaining status of the land of this case, other than the land of this case, has been assessed together with the land of this case before it was divided into ○○-dong Forest, ○○-dong, and the actual land price was determined and publicly announced as a whole, inasmuch as the actual status of the land of this case was determined and publicly announced as well as with the land of this case, the acquisition price is lower than the officially assessed land price of the ○○-dong Forest, ○○-dong, but in fact, it is difficult to accept the Plaintiff’s assertion in light of the fact that it cannot be assessed.

(3) Whether the appraised value is excessive

According to Gap evidence Nos. 3 and 15-2 and 3, each of the following facts can be acknowledged: the purchase price of the land of this case and the land of this case and the land of this case as of July 1, 2004 and the officially assessed land price of this case as of July 1, 2004 are the same amount as 149,33, 433, 67,500, and 67,500/m2. The officially assessed land price of this case as of February 27, 2004 is 67,900/m2, and 67,000/m2 according to the officially assessed land price calculation method as of January 1, 204, considering that the publicly assessed land price of this case as of February 27, 2004 is 67,000/m2,000,000 of the land of this case, there are no errors in the law.

Therefore, the plaintiff's assertion is without merit.

(4) Principle of imposition of capital gains tax and equity by land category

As alleged by the Plaintiff, even if the transfer income tax was imposed on other adjacent props by applying the officially assessed individual land price assessed as forests and fields on the ground that the transferred land is classified as forest land on the public register, it cannot be deemed that the instant disposition contravenes the taxation equity, and there is no other assertion or assertion as to the circumstances that may otherwise be recognized.

Therefore, the plaintiff's assertion is without merit.

(5) Justifiable tax amount

If a legitimate tax amount is calculated with respect to the transfer of land subject to consultation, including the land in this case, the amount of tax to be additionally paid by the Plaintiff is KRW 43,740,540,540, and the amount exceeding KRW 43,740,540 among the disposition in this case should be revoked.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.