Whether taxable objects of capital gains tax are legitimate

In exchanging the land owned by the plaintiff and the land owned by the related corporation with a lower price than that, even if there is no economic benefit by donating the difference to the related corporation, it is subject to the imposition of the capital gains tax.

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

1. The part of the instant lawsuit seeking revocation of the disposition imposing additional dues is dismissed. 2. On October 16, 1992, the part that exceeds KRW 7,186,430 among the disposition imposing capital gains tax of KRW 118,339,690 against the Plaintiff is revoked. 3. The remainder of the Plaintiff’s claim is dismissed. 4. The Plaintiff’s 1/15 of the costs of lawsuit and the remainder are assessed against the Defendant.

1. Details of the imposition;

The following facts may be acknowledged, either in dispute between the parties or in full view of the statements in Gap evidence 1, 9, 2, 4, 5, 6, 8, 10-1, 2, 3-1 through 14, 7-1 through 8, 1-5, and 1-5, and the statements in Gap evidence 1, 2, 2, 5, 6, 8, 10-2, 3-1 through 8, 7-1 through 5

A. On June 1970, the Plaintiff established ○○ Private School Foundation (hereinafter “Non-Party 3”), operated ○ High School as the chief director, and entered into a contract on November 11, 1991 to exchange land Nos. 1, 2 (hereinafter “Non-Party 1 and 2”) in attached Form No. 3 (hereinafter “Non-Party 3”) located in the premises of the above school with his own ownership on November 11, 1991, and implemented the procedure for the registration of ownership transfer on the ground of the above exchange on the 19th day of the same month.

B. The land of this case was actually a site used as the above school site, and the appraisal price of the land of this case was KRW 807,300,000,000 at the time of the above exchange contract, and KRW 210,000 at the time of the above exchange contract. The appraisal price of the land of this case was KRW 31,50,000, KRW 6,940,000, and KRW 838,800,000 for the appraisal price of the land of this case, and KRW 216,940,00 for the officially announced land price was KRW 30,00 for the appraisal price of the land of this case, and KRW 30,00 for the land of this case was located on the back of the above school. The appraisal price was KRW 113,375,00, KRW 45,350,000 for the officially announced land price, and the difference between the above exchanged land prices was concluded by the plaintiff as the above exchange contract to exchange of the non-party corporation.

C. Regarding the above exchange, the Plaintiff did not make a preliminary and final return on the gains from transfer on the ground that there was no income subject to the imposition of capital gains tax. However, on October 16, 1992, the Defendant notified the Plaintiff that the amount of KRW 5,916,916,980 shall be calculated as KRW 216,940,00 at the time of transfer by the base land price of the instant land Nos. 1 and 2, and KRW 11,542,672 at the time of its acquisition, and the transfer margin shall be calculated as KRW 205,382,574, and the transfer income tax shall be imposed as KRW 118,339,690 at the time of its transfer (hereinafter the instant disposition) shall be imposed on the Plaintiff.

2. The plaintiff's assertion and relevant statutes

A. The plaintiff's assertion

The transfer income tax under the Income Tax Act is a tax imposed on income derived from the transfer of assets at a cost, and even if the transfer of assets was conducted, if there is no actual income, the transfer income tax may not be imposed. In this case, the Plaintiff transferred the instant land Nos. 1 and 2, and instead acquired the instant land No. 2, which is much lower than the above, and thus, did not actually have any income. Therefore, in light of the substance over form principle, the instant disposition

Even if not, the Plaintiff acquired the land No. 3 of this case instead of the land No. 1 and No. 2 of this case, and thus, the Plaintiff should calculate the transfer income tax based on the difference between KRW 11,542,672, which is the original acquisition price of the land No. 1 and KRW 45,350,000, which is the officially announced price of the land No. 3 of this case, and thus, the portion exceeding the calculated amount is unlawful.

B. Provisions of relevant statutes

Article 4 (1) 3 of the Income Tax Act (hereinafter referred to as the "Act") stipulates that income generated from the transfer of assets shall be classified into capital gains, and the transfer of assets shall be actually transferred at a price due to sale, exchange, investment in kind in corporation, etc. regardless of registration or enrollment of assets.

Meanwhile, in calculating gains on transfer of assets, Articles 23(4)1 and 45(1)1 of the Act provide that the transfer value and acquisition value, which form the basis of such calculation, shall be the standard market price at the time of transfer and acquisition, except as otherwise prescribed by the Presidential Decree. Article 115(1)1 of the Enforcement Decree of the Act provides that the land price shall be determined by the head of a Si/Gun/Gu, except as otherwise designated by the Commissioner of the National Tax Service, as the land price for the individual parcel calculated on the basis of the officially announced land price under Article 10 of the

In addition, Article 21 of the National Tax Collection Act provides that if national taxes are not paid in full by the payment deadline, the additional dues equivalent to 5/100 of the national taxes in arrears shall be collected from the date on which the payment deadline expires, and Article 22 provides that if national taxes in arrears are not paid in full, the aggravated additional dues equivalent to 20/100 of the national taxes in arrears shall be collected each time when one month elapses from the date on which the payment deadline expires.

3. Judgment of party members

(a) Whether a lawsuit seeking the revocation of a disposition imposing additional dues is legitimate;

Article 21 of the National Tax Collection Act provides that if national taxes are not paid by the due date, as a kind of incidental tax imposed in the meaning of interest for arrears, if national taxes are not paid by the due date without the due date of payment without the due date of the person having the authority to impose the tax, additional dues shall be naturally created and the amount thereof shall be determined. However, in order to commence the collection procedure, it shall be possible to urge the payment of the additional dues by the demand notice, and if the demand for the payment of the additional dues is unreasonable or defects exist in the procedure, it shall be possible to object to the revocation lawsuit against the collection disposition (see Supreme Court Decision 90Nu168 delivered on May 8, 190)

However, according to the above facts of recognition, in this case, the defendant notified the plaintiff on October 16, 1992 that he would collect additional dues of 5,916,980 won if he did not pay the capital gains tax by November 30, 1992, while imposing and assessing the capital gains tax of this case on the plaintiff on October 16, 1992, and there is no evidence to prove that the defendant urged the payment after the above payment deadline. Thus, the notice of the additional dues of this case for which the plaintiff seeks cancellation is sought is merely a mere guidance on the taxpayer, and it does not exist separately as a disposition. Thus, the claim for cancellation of the additional dues

C. Whether the instant disposition is lawful

According to the above facts-finding relation, the plaintiff in this case exchanged land Nos. 1 and 2 of this case and land No. 3 of this case, which is lower than that of this case, and the difference is intended to donate to the non-party corporation, and thus, there is no substantial economic interest. Thus, the plaintiff's above transaction becomes subject to the capital gains tax pursuant to Article 4 (3) of the Act, so the plaintiff'

However, since the acquisition of land in lieu of land Nos. 1 and 2 in this case is the third land of this case and its difference is donated, the transfer amount, which is the premise of calculating transfer margin, shall be an equivalent amount to the value of land No. 3 in this case, and in this case where there are no special circumstances to apply the real market price, the value

Therefore, the acquisition value of the land in this case 1,542,672, which is the base price at the time of the acquisition of the land in this case. Since the transfer value of the land in this case 3 is KRW 45,350,000, which is the base price at the time of the transfer of the land, the transfer value of the land in this case is calculated based on this, it is identical to the invoice of the transfer income tax amount in the annexed sheet (as the land in this case 1 is over 10 years and the land in this case 2 is owned for 5 years and over 5 years, the transfer value is calculated proportionally by the officially announced value of each

3. Conclusion

If so, the part seeking the revocation of the disposition imposing additional dues is unlawful and dismissed. The plaintiff's claim seeking the revocation of the illegal part among the disposition of this case is legitimate, and the remaining claim is rejected, and it is so decided as per Disposition by applying Article 8 (2) of the Administrative Litigation Act, Articles 89 and 92 of the Civil Procedure Act to the burden of litigation cost.