Cho High Court Decision 2006Du3729 (02.04)

Disposition imposed by an appraisal corporation for the purpose of lending the market price of private supply at the value appraised by the appraisal corporation;

With respect to the fact of calculating the market price at the value appraised by a certified public appraisal corporation for the purpose of lending the market price of private supply, the plaintiff only claims that the appraised value is unrefilled, but no evidentiary document is presented as to specific reasons for which the appraised value is not reliable.

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of global income tax of KRW 768,832,581 (including additional tax) for the year 2003 on August 1, 2006 against the Plaintiff shall be revoked.

1. Circumstances of the disposition;

가. 원고, 유@@, 전☆☆(이하 '원고 등'이라 한다)는 부동산매매업을 영위하기 위하 여 2002. 6. 1. 사업자등록을 한 후, 2002. 8. 9. 공동으로 고양시 일산동구 ★★동 856-2 대 1,494.7㎡를 매수하여 위 토지 지상에 지하 3층, 지상 10층인 '○○프라자' 상가건물(연면적 13,730.18㎡, 점포 수 62개, 이하 '이 사건 건물'이라 한다)을 신축하고, 2003. 7. 25. 각 공유지분을 1/3로 하여 이 사건 건물에 관한 소유권보존등기를 마쳤다.

B. Until August 8, 2003, the Plaintiff et al. reported the global income tax for the year 2003 with the aggregate of the value of the instant store as KRW 8,638,440,000, and the aggregate of the value of the instant store as KRW 8,638,40,000, as follows: (a) the share of the Plaintiff et al. on the registration of ownership preservation with respect to the instant building is 1/3, respectively; but (b) the share ratio of the Plaintiff et al. on the registration of ownership preservation is 1/3; and (c) the Plaintiff et al. reported the global income tax for the year 203.

C. From March 20, 2006 to June 9, 2006, the director of the Central Regional Tax Office reported the 11,861,041,000 won, which is the appraised amount by the appraisal corporation, and omitted sales of KRW 3,221,601,00, which is the difference. The Plaintiff appropriated the 66,625,201,200 won and the 127,465,964 won paid for the year 2004 as necessary expenses, and notified the Defendant of taxation data that the 2004 sales price was underestimated KRW 368,729,670,00, which is the appraised amount by the appraisal corporation.

D. On August 1, 2006, the Defendant issued a correction and notification of the Plaintiff’s global income tax of KRW 803,302,490 (including additional tax of KRW 243,008,838) for the year 2003, and determined to refund KRW 5,797,720 for the global income tax for the year 2004.

E. Accordingly, the Plaintiff filed an appeal with the National Tax Tribunal on October 23, 2006. The National Tax Tribunal partially accepted the Plaintiff’s claim, and on February 4, 2008, included KRW 66,625,201, which was paid on February 4, 2003, in necessary expenses, and corrected the tax base and amount of the tax, and the amount of the interest paid on February 4, 2004 to be included in the necessary expenses, and the portion requesting the Plaintiff to be included in the necessary expenses, was dismissed, and other claims by the Plaintiff were dismissed.

F. Accordingly, on February 26, 2008, the Defendant corrected the global income tax for KRW 768,832,581 (including additional tax of KRW 232,523,993) as of February 26, 2008 (hereinafter the above disposition of imposition of global income tax for the year 2003 as of August 1, 2006 remaining after the reduction or correction as above).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, Eul evidence Nos. 1 to 4 (including each number), the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's principal

(1) 소득세법 제25조 제2항에서 규정하고 있는 재고자산을 가사용으로 소비한 경우 총수입금액에 산입하여야 하는 '소비한 때의 가액에 상당하는 금액'은 원칙적으로 시가를 의미하고, 그러한 시가가 없는 경우에 감정가액 등 기타의 평가방법에 의하여 야 한다. 그런데 이 사건 건물 중 30개 점포에 대한 거래사례가 있고, 또 이 사건 건물과 인접하고 건물의 층고, 규모, 신축시기가 거의 유사한 '●●●윈' 상가가 이 사건 분할 이후 분양된 사례가 있으므로, 위 각 거래가액을 이 사건 점포의 시가로 보아야 함에도 불구하고 이 사건 점포에 대한 시가가 없는 것으로 보고 원고 등이 보다 많은 대출을 받기 위하여 부풀려서 받은 감정가액을 위 규정 소정의 '소비한 때의 가액에 상당하는 금액'에 해당함을 전제로 한 이 사건 처분은 위법하다.

(2) In addition, under the premise that Article 89(2) of the Enforcement Decree of the Corporate Tax Act applied mutatis mutandis pursuant to Article 98(3) of the Enforcement Decree of the Income Tax Act applies, the Defendant calculated the value of the instant store based on the appraisal value of the instant store. However, in order to apply Article 98(3) of the Enforcement Decree of the Income Tax Act, the Plaintiff is required to be subject to calculation of unfair acts arising from transactions with a person with a special relationship as provided in Article 41 of the Income Tax Act, and thus, the instant disposition based on Article 98(

(3) The Defendant’s excessive appropriation of KRW 182,481,372 (i.e., interest paid for year 2003 + KRW 49,625,307 + interest paid for year 2004 + interest paid for year 2002,856,065) should be included in necessary expenses, inasmuch as the Defendant’s excessive appropriation was the interest of a loan appropriated for the purchase price of a site and the construction cost of a new building for year 2003 and 204.

(4) In light of the fact that the Plaintiff did not intentionally underreporting the comprehensive income tax, but rather faithfully returned the income tax considering the surrounding transaction tax at the time. However, in light of the opinion difference with the Defendant as to the standard for calculating the market price of the instant store, it is merely a result of underreporting the amount of income, etc., it is deemed that there is a justifiable reason not to mislead the Plaintiff’s breach of duty, and thus, the instant penalty tax imposition is unlawful.

(b) Related statutes;

It shall be as shown in the attached Form.

(c) Fact of recognition;

(1) On August 20, 2003, the Plaintiff et al. requested the Pacific Appraisal Corporation to conduct an appraisal in order to obtain a loan from the financial institution as collateral. The appraisal value for the instant store is as shown below [Attachment 1]. 20 out of the instant store was sold after the instant partition. The sale date and sale price are as listed below [Attachment 1].

(2) 고양시 일산동구 ★★동 856 지상의 '●●●윈' 건물은 이 사건 건물과 인접하여 있고, 이 사건 건물과 층고, 신축시기 등이유사하며, 한편 원고가 제출한 '●●●윈' 건물의 분양내역은 아래 [표2] 기재와 같다.

(3) 한편, 이 사건 점포 중 유@@ 소유의 112호, 201호, 203호, 302호, 303호는 이 사건 분할 이후 경매절차에서 매각되었는바, 그 내역은 아래 [표3] 기재와 같다.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 5, 6, 11, 12, Eul evidence Nos. 2, 3 and 7 (including each number), the purport of the whole pleadings

D. Determination

(1) Judgment on the first proposal

(A) According to Article 25(2) of the Income Tax Act, even where a resident consumes inventory assets for provisional use, an amount equivalent to the value at the time of consumption shall be included in gross income for the year in which such date belongs. According to Article 53(9) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20168, Feb. 22, 2008; hereinafter the same), Article 51(5) of the Enforcement Decree of the Income Tax Act shall apply mutatis mutandis to the calculation of value at the time of consumption under Article 25(2) of the Income Tax Act. Meanwhile, in calculating gross income of a resident, Article 51(5) of the Enforcement Decree of the Income Tax Act provides for the market price as prescribed by the Ordinance of the Ministry of Finance and Economy if a person with a special relationship except for those under subparagraphs 1 through 4, and Article 25(2) of the Enforcement Decree of the Income Tax Act provides for the calculation of the value at the time of transactions with a large number of unspecified persons under Article 28(1).30-1 of the Enforcement Decree of the Income Tax Act.

According to the above provisions, "amount equivalent to the value at the time of consumption" which should be included in the total amount of income in cases where a resident consumes a inventory asset as a provisional use" means the market value, that is, in a situation similar to the transaction in question, where there is a price continuously traded with many and unspecified persons other than a specially related person or a price generally traded between third parties who are not a specially related person, such price, and where the market value is unclear, the price shall not be the value appraised by an appraisal corporation under the Act on Public Notice of Values and Appraisal of Land, etc

(나) 그러므로 먼저, 이 사건 분할 당시 이 사건 점포의 시가가 존재하는지에 관하여 보건대, 상가건물은 위치나 구조, 점포의 수나 면적, 교통상황 등 다양한 입지조건의 영향을 강하게 받으므로 위 입지조건에 마세한 차이가 있을 뿐이라도 가격에는 큰 차이가 있을 수 있고, 심지어 같은 건물의 같은 층에 위치하더라도 점포마다 가격에 큰 차이가 있을 수 있는 점, 또한 소득세법 제25조 제2항에서는 재고자산을 가사용으로 '소비한 때'의 가액 상당의 금액을 총수입금액에 산입하도록 하고 있는데, 이 사건 점포에 대한 감정평가가 이루어진 시점은 이 사건 분할일(2003. 8. 8.) 직후인 2003. 8. 20.인 반면, 이 사건 점포 중 이 사건 분할 이후 분양된 점포는 대부분 이 사건 분할로부터 상당한 시간이 지난 2003년 말 또는 2004년에 분양된 것인 점 등을 종합하면, 이 사건 건물과 인접한 ●●●윈의 분양가액이나 이 사건 점포 중 이 사건 분할 이후 분양된 점포의 분양가액을 이 사건 분할 당시의 이 사건 점포의 시가로 볼 수는 없고, 달리 이 사건 분할 당시의 이 사건 점포에 대한 시가를 인정할 만한 자료가 없다.

(C) Next, it is reasonable to view that the Defendant assessed the appraisal value of the instant store as the “amount equivalent to the value when the said appraisal value was consumed” under Article 25(2) of the Income Tax Act as the “amount equivalent to the value when the said appraisal value was consumed” is legitimate, and that the appraisal corporation assessed the said appraisal value in accordance with objective and reasonable standards and methods, barring any special circumstances, as a public trust institution. In addition, in light of the following, the Plaintiff’s assertion that the said appraisal value was excessively unrefilled in order to obtain a loan more than the above appraisal value, and the Plaintiff submitted only the data that the said appraisal value was higher than the actual sale value after the division or the neighboring commercial building’s sale value. In addition, the method of calculating the said appraisal value is not in compliance with the standards of appraisal under the relevant provisions, such as the Act on the Publication of Land Prices and the Evaluation of Land, etc., and it is difficult to deem that the said appraisal value was reasonable and appropriate, it is difficult to recognize any defect in the appraisal value under Article 89(2)1 of the Enforcement Decree of the Corporate Tax Act.

(라) 한편, 원고는 공동사업자인 유@@ 소유의 이 사건 점포 중 112호, 201호, 203호, 302호, 303호 등에 대한 경매 당시 감정평가액 내지 실제 낙찰된 가액으로 이 사건 시가를 산정하여야 한다는 취지로 주장하나, 앞서 본 바와 같이 이 사건 점포에 대한 감정평가가 이루어진 시점은 이 사건 분할일(2003. 8. 8.) 직후인 2003. 8. 20.인 반면, 유@@ 소유의 112호, 201호, 203호, 302호, 303호 점포의 경우 앞서 본 [표3] 기재와 같이 위 각 점포에 대한 경매절차에서 감정평가가 이루어진 시점이나 낙찰된 시점은 이 사건 분할일(2003. 8. 8.)로부터 상당한 시간이 지난 2007년경인 점 등을 고려하면, 위 각 점포에 대한 경매 당시 감정평가액 내지 실제 낙찰된 가액을 이 사건 분할 당시의 시가로 볼 수는 없으므로, 위 주장은 이유 없다.

(2) Judgment on the second ground

As seen earlier, the Defendant’s instant disposition is not premised on the application of Article 41 of the Income Tax Act and Article 98(3) of the Enforcement Decree of the same Act in the instant disposition. Therefore, the Plaintiff’s assertion that the instant disposition was unlawful on a different premise is against the principle of no taxation without the law is without merit.

(3) A third-class judgment

According to the above facts, with regard to the Defendant’s imposition of global income tax of KRW 803,302,490 on August 1, 2006 against the Plaintiff, the National Tax Tribunal decided to include the Plaintiff’s interest accrued in 2003 as necessary expenses and to revise the tax base and tax amount. Accordingly, the Defendant’s revision of the Plaintiff’s total income tax accrued in 2003 to KRW 768,832,581 on February 26, 2008 to include the Plaintiff’s interest accrued in 2003 as necessary expenses, and it appears that all the Plaintiff’s interest accrued in 2003 and KRW 49,625,307 were included in necessary expenses (the Plaintiff’s interest accrued in 203,625,307, which was initially asserted at the time of the request for a disposition of imposition of national taxes of KRW 66,625,201, which was not related to the Plaintiff’s interest accrued in 20035 years thereafter).

(4) On the fourth-class judgment

Under the tax law, where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim, the taxpayer’s intent or negligence is not considered as administrative sanctions imposed as prescribed by the individual tax law. Provided, That where a taxpayer is not aware of his/her duty or it is unreasonable for him/her to expect the fulfillment of his/her duty, etc., and there are justifiable grounds to believe that it is unreasonable for him/her to do so (see, e.g., Supreme Court Decision 2001Du403, Sept. 5, 2003).

In full view of the aforementioned legal principles and circumstances revealed in the facts acknowledged as seen earlier, and the Plaintiff’s failure to report based on the global income tax declaration for the purpose of 2003, despite the existence of the appraised value on the store of this case, it is difficult to deem that the Plaintiff was justifiable for failing to properly perform his duty to report the global income tax, and therefore, the Plaintiff’s allegation is without merit.

3. Conclusion

If so, the plaintiff's claim for objection case is without merit, so it is judged the same as the order.