(영문) 서울고등법원 2012.3.28.선고 2011누26000 판결

1. The part of the judgment of the court of first instance against the plaintiff falling under the order for revocation below shall be revoked. The part of the disposition by the defendant against the plaintiff on December 1, 2009, which exceeds KRW 9,585,495, out of the disposition of imposition of capital gains tax of KRW 89, 827, 840 for the plaintiff on December 1, 2009

2. The remaining appeal filed by the Plaintiff is dismissed.

3. 10% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant.

Purport of claim and appeal

The judgment of the first instance shall be revoked. The transfer income tax reverted to the Plaintiff on December 1, 2009, which was rendered by the Defendant on December 1, 2009.

89, 827, 840 won shall be revoked.

Reasons

1. Details of disposition;

A. On March 28, 2005, the Plaintiff entered into a contract on the exchange of 163 meters of land owned by the Plaintiff and 163 meters of land, 163 meters of land, 164 land, 468 meters of land, 165 land and 1,39 square meters of land and 1,349 square meters of land (hereinafter referred to as “exchange real estate after adding each land and building”) with 53 meters of land owned by the Plaintiff (hereinafter referred to as “the exchange contract of this case”). At the time, the Plaintiff entered into a contract on the exchange of 163 meters of land, 163 meters of land, 468 meters of land, 165 land, 39 square meters of land and building, and 1,349 square meters of land (hereinafter referred to as “exchange real estate”). At the time, the real estate of this case was located in the area before it was amended by Act No. 7837, Dec. 31, 2005).

B. On April 20, 2005, the instant real estate was transferred to △△△△△△△, a person who is a person △△△△△△△, and the exchanged real estate was transferred to △△△△ on April 22, 2005, the Plaintiff’s wife.

C. On June 21, 2005, the Plaintiff reported and paid to the Defendant the acquisition value of the instant real estate transfer at KRW 283,211,00, and the transfer value at KRW 316,00,00, in accordance with Article 96(1)6-2 of the former Income Tax Act.

D. On December 1, 2009, the Defendant considered the Plaintiff as underreporting the transfer value at the time of reporting the transfer income tax on the instant real estate, and assessed the actual transfer value at KRW 542,00,000, and issued the instant disposition that corrected and imposed KRW 89,827,840 for the transfer income tax for the year 2005.

【Ground for Recognition: Facts without dispute, Gap evidence Nos. 1 and 2, Eul evidence Nos. 1, 2, 11 and 12, the purport of the whole pleadings)

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Although the Defendant calculated the transfer value of the instant real estate at KRW 542,00,000, the said money was not the actual transaction value prescribed in Article 96 of the former Income Tax Act. Since the instant real estate transfer is a transfer by exchange and it is impossible to confirm the actual transaction value, the transfer value should be determined based on the standard market price. The instant disposition is unlawful.

B. Relevant statutes

As shown in the attached Form.

C. Determination

1) The actual transaction value, which is the basis for calculating gains on transfer, is not an objective exchange value, but an actual amount agreed on the actual transaction price itself or at the time of transaction. Thus, where a transaction which is the object of capital gains tax is a simple exchange, it shall not be confirmed the actual transaction price. However, where the exchange is a value exchange based on the value of an object, such as following settlement procedures for the difference in the appraisal price, it shall be possible to verify the actual transaction price. In this case, the actual transaction value of an object acquired through the exchange and cash paid shall be the actual transaction value of an object transferred through the exchange (see Supreme Court Decision 2009Du19456, Feb. 10, 201; 200 won, 30 won, 40 won, 400 won, 40 won, 400 won, 60 won, 400 won, 600 won, 400 won, 600 won, 600 won, 400 won, 400 won, 600 won, 600 6 won, 60 Do 6200.

However, in light of whether the value of the exchanged real estate subject to exchange was settled at KRW 330,00,00 at the time of the instant exchange contract with the Plaintiff, it is not sufficient to acknowledge the same solely by the descriptions of the evidence Nos. 2, No. 5, and No. 7, and there is no other evidence to acknowledge it, and the evidence No. 6, which seems consistent with the above, is not believed by this Court in view of the testimony of △△△.

Rather, comprehensively taking account of the following facts: (a) evidence No. 1 and No. 8; and (b) the testimony made by this court; (c) the Plaintiff took over KRW 240,00,000, out of the secured debt created on the instant real estate by △△△△△△, or △△△△△△△△△△, at the time of the instant exchange contract; (d) the Plaintiff agreed to take over KRW 88,00,000 out of the secured debt created on the instant real estate exchanged by the Plaintiff; and (e) the Plaintiff paid KRW 60,00,00 to the Plaintiff for the purpose of reducing the registration cost; (e) however, the exchange value of the instant real estate was not set at KRW 330,00,00,000, which is the standard market value at the time of the instant exchange contract; and (e) the Plaintiff was not set at KRW 600,000,000,000,000 of the acquisition value of the instant real estate at the time of the instant real estate was set at KRW 3000.

3) Therefore, the part of the instant disposition, which was based on the premise that the actual transaction value of the instant real estate was 542,000,000, is illegal.

In light of the above facts, the Plaintiff asserts that the transfer price of the real estate following the real estate exchange constitutes a case in which the actual transaction price cannot be confirmed, and thus, the transfer price difference should be calculated based on the standard market price. In light of the above facts, since the sales contract (No. B. 3) submitted by the Plaintiff at the time of filing a transfer income tax return falls under a contract different from the fact, the transfer price difference in the real estate of this case should be calculated based on the standard market price under Article 114(5) of the former Income Tax Act. (4) If the transfer price difference in the real estate of this case is calculated based on the standard market price, it is equal to the amount indicated in the column of "reasonable tax amount for the calculation of the transfer income tax for the year 205."

3. Conclusion

The part of the judgment of the court of first instance against the plaintiff regarding the scope exceeding the reasonable tax amount shall be revoked, and the disposition corresponding to the revoked part shall be revoked. The remaining appeal by the plaintiff shall be dismissed