Whether the transfer value of the real estate of this case can be calculated by pro rata and dividing the transfer value of each land, neighborhood living facilities, and housing according to the result of retroactive appraisal

It is not allowed to calculate the transfer value of each land, neighborhood living facilities, and housing by dividing the total transfer value according to the appraisal value conducted beyond the period prescribed by the main sentence of Article 64 subparagraph 1 of the Enforcement Decree of the Gu.

Article 100 of the former Income Tax Act

2017Gudan6654 Disposition rejecting capital gains tax rectification

Song AA

BB Director of the Tax Office

December 20, 2017

2018.02.07

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's rejection of correction of capital gains tax of 000 won for the year 2016 against the plaintiff on October 20, 2016 shall be revoked.

1. Details of the disposition;

A. On March 4, 2016, the Plaintiff transferred land in Gangnam-gu Seoul, GG Dong, 919-3, one unit of land neighborhood living facilities and one building (hereinafter referred to as “instant real estate”), and filed a preliminary return and revised return on the tax base of capital gains following the transfer of the instant real estate on April 18, 2016 and July 5, 2016, the Plaintiff proportional to the transfer value of the instant real estate pursuant to Article 100(2) of the former Income Tax Act (Amended by Act No. 13796, Jan. 19, 2016; hereinafter the same shall apply), Article 16(6) of the former Enforcement Decree of the Income Tax Act (Amended by Presidential Decree No. 27245, Mar. 31, 2016; hereinafter the same shall apply), Article 166(6) of the former Enforcement Decree of the Income Tax Act, and Article 164 of the former Enforcement Decree of the Income Tax Act (Amended by Presidential Decree No. 273737, Mar. 111, 2016).

B. However, according to the appraisal result of the instant real estate conducted by the appraiser ofCC on July 30, 2016 (hereinafter “the appraisal result of the instant real estate”), the Plaintiff re-calculated the transfer value of the instant real estate in proportion to and calculated according to the appraisal value of land, neighborhood living facilities, and housing, and then filed a claim for correction of KRW 000 of transfer income tax with the Defendant on August 29, 2016.

C. The Defendant rejected an application for correction against the Plaintiff on October 20, 2016, on the ground that the appraisal result of the instant real estate was conducted beyond the period stipulated in the main sentence of Article 64 subparag. 1 of the former Enforcement Decree of the Value-Added Tax Act, namely, from July 1, 2015 to June 30, 2016, and that it cannot guarantee accuracy due to a large-scale repair of the instant real estate conducted after it was substantially repaired.

D. On January 10, 2017, the Plaintiff filed an appeal on the instant disposition with the Tax Tribunal, but the Tax Tribunal dismissed the Plaintiff’s appeal on March 31, 2017.

[Reasons for Recognition] No dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1 through 7, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The issues of the instant case

1) Whether the transfer value of the real estate of this case can be calculated by calculating the transfer value of each land, neighborhood living facilities, and housing in proportion to the calculation of the transfer value of the real estate of this case

2) Whether the appraisal results of the instant case can be guaranteed the accuracy, or as stated in the attached Form of the relevant statutes.

C. Determination

1) Article 100(2) of the former Income Tax Act and Article 166(6) of the former Enforcement Decree of the Income Tax Act provide that where the transfer value is calculated based on the actual transaction value and where land, buildings, etc. are transferred together, each transfer value shall be calculated proportionally in accordance with the main sentence of subparagraph 1 of Article 64 of the Enforcement Decree of the Value-Added Tax Act if the distinction between the value of land, buildings, etc. is unclear. Article 64 Subparag. 1 of the former Enforcement Decree of the Value-Added Tax Act provides that where the standard market price for land, buildings, etc. is all available, it shall be proportional and reasonable according to each standard market price. However, where there is an assessment at the end of the taxable period immediately preceding the taxable period to which the time of supply belongs

2) Ultimately, in cases where each actual transaction price is not confirmed separately by transferring land and buildings, the provisions of this case, in principle, shall be pro rata and calculated based on the standard market price. However, if each appraisal price assessed within a certain period exceptionally exists, the total transfer price shall be calculated in proportion and calculated as a substitute price for each real estate. ① The actual transaction price refers to not the general market price reflecting the original objective exchange price, but the actual price is the actual transaction price itself or the price for benefits at the time of transaction. ② The provisions of this case, unlike Article 97(1)1(b) of the former Income Tax Act and Article 62(2) of the former Income Tax and Gift Tax Act, are difficult to determine the transfer price of each real estate in proportion to the actual transaction price, and it is difficult to determine the transfer price in proportion to the actual transaction price in proportion to the actual market price in proportion to each real transaction price, and thus, it is difficult to determine the transfer price in proportion to the actual market price in proportion to each real transaction price in accordance with each of the existing market price and appraisal price.

C. Sub-committee

The appraisal result of this case is a period stipulated in the main sentence of Article 64 subparagraph 1 of the former Enforcement Decree of the Value-Added Tax Act, i.e., the appraisal result conducted beyond July 1, 2015 to June 30, 2016, since there is no dispute between the parties. Thus, the plaintiff's request for correction made under the premise of calculating the transfer value of each land, neighborhood living facilities, and housing in proportion to the transfer value of the real estate according to the appraisal result of this case is without merit. Thus, the disposition of this case is lawful regardless of whether the accuracy of the appraisal result of this case can be guaranteed (the case of the Supreme Court Decision 98Du2102 Decided May 26, 1998 is a case subject to the former Value-Added Tax Act prior to the amendment of the Value-Added Tax Act, and the case of this case differs

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.