Seoul Administrative Court-2013-Gu Group-13757 ( October 22, 2015)

Where assets subject to taxation and non-taxable assets are transferred together, if the value of the non-taxable assets is unclear, method of distribution;

If the value of non-taxable assets is unclear, it is reasonable to calculate the standard market price of non-taxable houses in accordance with Article 99 (1) 1 (d) of the former Income Tax Act and Article 164 (11) of the former Enforcement Decree of the Income Tax Act in proportion

Article 99 (Assessment of Standard Market Price)

2015Nu6584 Revocation of Disposition of Imposing capital gains tax

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○ Head of tax office

July 26, 2016

September 6, 2016

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

The Defendant’s imposition of KRW 59,760,970 (including additional tax of KRW 22,11,239) and special rural development tax of KRW 10,554,720 (including additional tax of KRW 3,024,779) against the Plaintiff on February 1, 2012 shall be revoked.

2. Purport of appeal

The portion of the judgment of the first instance court against the plaintiff shall be revoked. The imposition of capital gains tax of 37,649,731 won (excluding additional tax) and special rural development tax of 7,529,941 won (excluding additional tax) against the plaintiff on February 1, 2012 shall be revoked.

1. Scope of the judgment of this court;

In the first instance court on February 1, 2012, the Plaintiff sought revocation of imposition of capital gains tax of KRW 59,760,970 (including additional tax) and special rural development tax of KRW 10,554,720 (including additional tax) that the Defendant made against the Plaintiff on February 1, 2012. The court of first instance revoked imposition of additional tax of KRW 22,11,239 and additional tax of KRW 3,024,79 among special rural development tax, and dismissed the remainder of the claim.

Therefore, since only the plaintiff has lodged an appeal against the losing part, the scope of the judgment of this court is limited to the part of the principal tax of capital gains tax of which the plaintiff has lost, and the part of the principal tax of special rural development tax of KRW 7,529,941.

2. Quotation of judgment of the first instance;

The court's explanation on this case is identical to the corresponding part of the judgment of the court of first instance, except for the addition of the corresponding part of the judgment of the court of first instance as follows. Thus, it shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

A. The height part

○ On the 8th judgment of the first instance court, the entry of No. 11 and this Court's "No. 11 and No. 14" in the first instance court and the second instance court's "No. 11 and No. 14"

○ Until the 8th judgment of the first instance court, No. 14, “related” through No. 16, are as follows:

Article 99 (1) 1 (d) of the former Income Tax Act and Article 164 (11) of the former Enforcement Decree of the Income Tax Act shall be calculated pro rataly after calculating the standard market price of non-taxable housing pursuant to Article 99 (1) 1 (d) of the former Income Tax Act. As such, the transfer value of the non-taxable housing of this case calculated as such does not exceed 220,84,889 won, which is the transfer value calculated as at the time of the instant disposition, calculated as at the time of the instant disposition. Thus, on February 1, 2012, the transfer value of the non-taxable housing of this case made by the Defendant against the Plaintiff is KRW 220,84,89, the transfer

B. Additional parts

○ Part 4 of the first instance judgment’s 9th place

Of the above money, KRW 10,000 paid to 101 lessee ○○ and ○○○○,00,000 paid to the above money, is the necessary expenses paid to the opposing lessee.

○ At the bottom of the 7th judgment of the first instance court, paragraph 6:

In a lawsuit seeking revocation of a taxation disposition, the determination of illegality of the said taxation disposition should be made by whether the amount of the tax assessed exceeds the legitimate amount of tax (see, e.g., Supreme Court Decisions 81Nu296, May 11, 1982; 98Du4993, Sept. 3, 1999). Thus, even where the tax authority erred in the course of calculating and determining the tax base and amount of tax, and thus the taxation disposition is unlawful, the tax amount imposed and notified as above does not exceed the legitimate amount of tax calculated, and the erroneous method does not change the scope of the tax base and the reason for the disposition to the extent that the erroneous method does not change the scope of the tax base and the reason for the disposition, and thus, it cannot be revoked (see, e.g., Supreme Court Decisions 91Nu10695, Jul. 28, 1992; 92Nu10180, Sept. 28, 1993).

○ On the 8th judgment of the first instance court, the 7th "facts" followed.

The fact that the transfer value of non-taxable housing is KRW 201,414,268 (=1,210,000,000) ¡¿ 133,000,000,000/79,000,000,000) if calculated in consideration of the statutory standard price of local taxes of the instant real estate and non-taxable housing

○ Part 9 of the first instance court’s decision No. 7 “Health Team,”

According to Gap evidence Nos. 10-3 and Gap evidence Nos. 11, 200, the plaintiff paid 10,000,000 won as agreed money in lieu of mutually withdrawing a lawsuit of demurrer against the distribution with the lessee ○○○ and Lee ○○ on February 17, 2000. However, in light of the fact that the lease deposit under 101 was 25,000,000 won, the above money cannot be deemed as the lease deposit returned to the lessee with opposing power, and it cannot be deemed as necessary expenses, and in view of the above, it cannot be deemed as the lease deposit returned to the lessee with opposing power.

3. Conclusion

Therefore, the judgment of the first instance court is justifiable, and the plaintiff's appeal is dismissed as it is without merit.