Appropriateness of the assertion that the officially assessed individual land price was erroneously applied

Since the land transferred on March 3, 2006 is prior to the determination and public notice of the officially assessed individual land price for the relevant year, the immediately assessed individual land price should be applied, and it can not be contested in a tax lawsuit before the relevant administrative litigation is instituted against the illegality of the price determination

Article 99 (Assessment of Standard Market Price)

Article 164 of the Enforcement Decree of the Income Tax Act

1. The plaintiff's claim is dismissed.

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

The defendant's disposition of refusal to file a claim for correction of the transfer income tax belonging to the year 2006 against the plaintiff on February 21, 2007 shall be revoked.

1. Details of the disposition;

A. On March 3, 2006, the Plaintiff transferred the instant land to the Korea Land Corporation, and received the payment at that time. On May 29, 2006, the Plaintiff calculated the transfer value of the instant land by applying the officially assessed land price (138,000 won per square meter) in the year 2005 of the instant land, and then made a preliminary return of 207,190,500 won, which is the tax amount calculated accordingly, as the transfer income tax for the transfer of the instant land. The Plaintiff voluntarily paid the said tax amount.

B. After that, under the premise that the transfer value of the land of this case on December 21, 2006 should be calculated on the basis of the officially assessed individual land price in 2004 instead of the officially assessed individual land price in 2004, the Plaintiff filed a request for correction of the tax base and tax amount to the effect that the transfer income tax amount would be revised to KRW 98,214,280, which was calculated by applying the officially assessed individual land price in 2004. However, the Defendant did not notify the Plaintiff of any request for correction within 2 months, which is the notified period under Article 45-2(3) of the Framework Act on National Taxes (the Defendant, within 2 months from the date of receiving the request for correction under Article 45-2(3) of the Framework Act on National Taxes, shall accept the request for correction, and notify the Plaintiff that there is no reason to determine or correct the tax base and tax amount, but if no notification is made within the above statutory period, the Plaintiff shall be deemed to have rejected the request for correction and file an appeal against it.

Facts without dispute over the basis of recognition, Gap evidence 1 to 3 evidence, Eul evidence 2-1 to 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

The officially assessed individual land price in 2005, which was the basis for calculating the transfer income tax amount of the land of this case, shall be determined arbitrarily by predicting subsequent increase in land prices, even though there was almost no land price increase due to trade, etc. since it was designated as a housing site development zone on February 15, 2004 (On the other hand, the Plaintiff did not have any problem such as errors in land characteristics in calculating the error of the selection of the reference land price or the rate of price distribution. Therefore, the Plaintiff appears to have asserted as above on the premise that the officially assessed land price of the reference land of this case was determined high without any particular ground, rather than the officially assessed individual land price of 2005, not the officially assessed individual land price of 2004, but the disposition of this case

(b) Related statutes;

former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006)

Article 96 (Transfer Value)

(1) The transfer value of assets as prescribed in each subparagraph of Article 94 (1) shall be the actual transaction value between the transferor and transferee at the time of transfer of the relevant assets (hereinafter referred to as the "actual transaction value").

(2) Notwithstanding the provisions of paragraph (1), where assets provided for in Article 94 (1) 1 and 2 are transferred not later than December 31, 2006, their transfer value shall be based on the standard market price at the time of the transfer of relevant assets except for the case falling under any of the following subparagraphs:

1. Where the relevant assets fall under the standard for expensive houses under the provisions of Article 89 (1) 3 (including the land annexed thereto);

2. Where the relevant assets are rights to acquire real estates under the provisions of Article 94 (1) 2 (a);

3. Where assets are transferred without registration under the provisions of Article 104 (3);

4. Where assets are real estate within one year after acquisition;

5. Where real estate is acquired or transferred by illegal means, such as preparation of a false contract or a false transfer of resident registration, which meets the standards as prescribed by the Presidential Decree;

6. Where the transferor reports the actual transaction price at the time of transfer and acquisition to the head of tax office having jurisdiction over the place of tax payment by the due date of final report under Article 110 (1), along

7. Cases of real estates located within the designated area under the provisions of Article 104-2 (2);

8. Where it is a land for non-business use under the provisions of Article 104-3; and

9. Other cases prescribed by Presidential Decree in consideration of the type, holding period, number of assets held, scale of transaction, transaction method, etc. of the relevant assets.

99. Determination of the standard market price

(1) The standard market price pursuant to the provisions of Article 96 (2), the proviso to Article 97 (1) 1 (a), Articles 100 and 114 (7) shall be as follows:

1. Land or buildings as provided in Article 94 (1) 1:

(a) Land;

The officially assessed individual land price under the Public Notice of Values and Appraisal of Real Estate Act (hereinafter referred to as the "officially assessed individual land price"): Provided, That the price of land on which no officially assessed individual land price exists, shall be the amount appraised by the method as determined by the Presidential Decree in consideration of the officially assessed individual land price of neighboring similar land, and in the areas as determined by the Presidential Decree, where the

Enforcement Decree of the former Income Tax Act (amended by Presidential Decree No. 19890 of Feb. 28, 2007)

Article 164

(3) In applying Article 99 (1) 1 (a) of the Act, where the acquisition or transfer is made before the new standard market price is publicly announced, the immediately preceding standard market price shall apply.

former Act on Public Notice of Values and Appraisal of Real Estate (amended by Act No. 8409 of April 27, 2007)

Article 3 (Survey, Evaluation, and Public Announcement of Standard Officially Assessed Land Price)

(1) The Minister of Construction and Transportation shall investigate and assess the reasonable price as of the basic date every year with respect to the reference land selected from among lands deemed generally similar to the current status of land utilization, surrounding environment, and other natural and social conditions, and shall publicly announce it after deliberation by the Central Real Estate Assessment Commission pursuant to Article 19.

Article 8 (Filing Objections to officially announced Price of Official Land)

(1) Any person who has an objection to the officially announced price of reference land may file an objection with the Minister of Construction and Transportation in writing within 30 days from the date of public announcement of the officially announced price of reference land.

(2) Where the Minister of Construction and Transportation deems that the contents of an objection are reasonable within 30 days from the expiration of the period for raising an objection under paragraph (1), he shall adjust the officially announced price of reference land pursuant to Articles 3 and 5 and make a new public announcement.

(3) Except as otherwise expressly provided for in paragraphs (1) and (2), matters necessary for procedures for filing and handling objections shall be prescribed by Presidential Decree.

Article 11 (Determination, Public Announcement, etc. of Officially Assessed Individual Land Price)

(1) In order to impose development charges under the Restitution of Development Gains Act and use them for land prices for purposes prescribed by other Acts and subordinate statutes, the head of a Si/Gun/Gu shall, after deliberation by the Si/Gun/Gu Real Estate Assessment Committee under Article 20, determine and publicly announce the prices per unit area of individual land (hereinafter referred to as "individually announced land prices") within his/her jurisdiction as of the basic date of the officially announced land prices every year, and provide them to the relevant administrative agencies, etc.: Provided, That with respect to the land which is not subject to imposition of the land price, taxes or charges, etc. selected as the reference land price, the officially announced land price may not be determined and publicly announced. In such cases, with respect

(3) Where the head of a Si/Gun/Gu determines and publicly announces the officially assessed individual land price, he/she shall calculate the land price by using the land price ratification table on the basis of the officially announced land price of one or more reference land deemed to have similar usefulness to the relevant land, but shall ensure that the price of the relevant land and the officially announced

The former Enforcement Decree of the Public Notice of Values and Appraisal of Real Estate Act (amended by Presidential Decree No. 19463, Apr. 28, 2006)

Article 20 (Determination and Public Notice of Officially Assessedd Individual Land Price)

(1) The head of a Si/Gun/Gu shall determine and publicly announce individual officially announced values by May 31 each year (in cases falling under Article 15 (2), the date prescribed in each subparagraph of the same paragraph). The end of each year.

C. Determination

(1) Article 96 (2) of the Income Tax Act provides that when the assets subject to capital gains tax are transferred by December 31, 2006, the standard market price at the time of transfer shall be based on the "standard market price at the time of transfer of the assets," but such standard market price shall be based on the "individual published land price under the Public Notice of Values and Appraisal of Real Estate Act". Thus, in order to calculate the transfer price of the land of this case transferred before December 31, 2006, the officially assessed land price in 2006, which is at the time of transfer of the land of this case ( March 2006), shall be based on the officially assessed land price in 206. However, according to Article 20 of the Enforcement Decree of the Act on the Public Notice of Values and Appraisal of Real Estate, the determination and basic date of the officially assessed individual land price shall be calculated based on the officially assessed individual land price in 205, which is the standard market price under Article 164 (3) of the Enforcement Decree of the Income Tax Act.

(2) However, in principle, whether the individual land price is legitimate or not shall be determined based on the procedure and method stipulated in the Public Notice of Values and Appraisal of Real Estate Act and the individual land price assessment guidelines, and it is not directly related to the market price of the pertinent land. Thus, even if the individual land price is different from the market price or is determined differently from the change, the price determination cannot be deemed unlawful merely on such ground (see, e.g., Supreme Court Decision 93Nu13056, Jul. 12, 1996). Thus, in this case without any assertion as to the fact that there was any error in the process of selecting the comparative standard land price and revising the price rate for the pertinent land, the price determination of the individual land price cannot be deemed unlawful merely on the ground that there was no land price increase in the actual transaction due to the lack of transaction, such as

In addition, the Plaintiff did not claim that the officially assessed individual land price in 2005 was unfairly calculated due to errors such as the method of determining the officially assessed individual land price, but even if the Plaintiff asserts to the effect that the officially assessed land price in 2005 was unfairly calculated on the basis of the officially assessed individual land price was too high, to the effect that the officially assessed land price in this case was unfairly calculated on the basis of the officially assessed individual land price in 2005, the revocation of the determination of the officially assessed land price in order to raise an objection to the officially assessed land price of the land selected as the reference land price should be filed through the procedure of objection under Article 8(1) of the Public Notice of Values and Appraisal of Real Estate Act, and without following such procedure, the illegality of the officially assessed land price in a tax lawsuit can not be asserted (see Supreme Court Decision 93Nu16468, Nov. 10, 195).

(3) Ultimately, the Plaintiff’s assertion is without merit, and the Defendant’s instant disposition that calculated the transfer income tax of the instant land based on the officially assessed individual land price in 2005 is lawful.

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.