District Court-2013-Gu 1155 ( December 22, 2014)

Whether the amount equivalent to the appraised value can be recognized as acquisition value without deducting the accumulated depreciation amount.

Even if the capital gains tax is calculated by deducting the accumulated depreciation amounts, the tax amount is below the reported and paid tax amount by the plaintiff, so the disposition of this case shall be revoked wholly.

Seoul High Court 2015Nu32539 Revocation of Disposition of Imposing capital gains tax

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○ Head of tax office

Suwon District Court Decision 2013Gudan1155 Decided December 22, 2014

July 23, 2015

September 3, 2015

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The disposition of imposition of capital gains tax of KRW 295,898,320, which the Defendant rendered to the Plaintiff on November 13, 2012, shall be revoked (the Plaintiff corrected the purport of the claim in the appellate trial as above).

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is that the judgment of the court of first instance is identical to that of the court of first instance, except for the addition of the judgment made by the defendant in the appellate court as described below. Thus, it is cited by Article 8(2) of the Administrative Litigation Act and the main sentence of

2. Judgment on the defendant's assertion

A. The defendant first asserts that the court of first instance recognized the amount equivalent to the appraised value (2,521,00,000 won) as the acquisition value and determined that the transfer margin did not exist, even though the accumulated depreciation amounts should be deducted when calculating the acquisition value of the building of this case.

그러므로 보건대, 갑 제9호증의 2의 기재에 변론 전체의 취지를 종합하면, 피고 주장과 같이 이 사건 건물의 취득가액(2,521,000,000원)에서 원고가 종합소득세 신고 시 필요경비에 산입한 감가상각누계액(203,715,000원)을 공제하여 양도소득세를 산출하더라도 그 세액(27,058,121원)이 원고가 신고・납부한 세액(101,659,430원)에 미달하는 사실을 인정할 수 있다[참고로 을 제9호증의 1은 감가상각누계액으로 504,197,479원(≒203,715,000원 × 2,521,000,000원 / 1,018,577,000원; 이는 이 사건 건물의 취득가액이 1,018,577,000원에서 2,521,000,000원으로 증가할 경우 이에 비례하여 증가할 것으로 예상되는 감가상각누계액으로서 원고가 실제 필요경비로 신고한 감가상각누계액이 아니다)을 공제하여 양도소득세를 산출한 계산서에 불과하여 이에 따라 정당한 양도소득세액을 인정할 수는 없다]. 따라서 이 사건 처분이 모두 취소되어야 한다는 결론에는 변함이 없으므로, 피고의 위 주장은 이유 없다.

B. Next, the Defendant asserts to the effect that the Plaintiff’s assertion that the acquisition value of the building of this case should be calculated according to the appraised value in the instant lawsuit by appropriating the acquisition value of the building of this case in KRW 1,018,577,000 on the balance sheet is contrary to the principle of good faith and good faith or the principle of good faith.

Therefore, in light of the following facts: (a) there is an objectively contradictory behavior in order to apply the principle of good faith to taxpayers; (b) the behavior was derived from the taxpayer’s severe acts of worship; and (c) the trust of the tax authority resulting therefrom should be protected; (d) the application of the principle of good faith to the tax entity law that strongly acts as a law by the principle of good faith is allowed only when it is recognized as necessary to protect specific trust by destroying the legality; (b) the tax authority has the right to a field investigation; (c) as well as the tax authority has the duty to investigate and impose the substance; and (d) bears the burden of proving the legality of the tax disposition; and (e) the circumstance asserted by the Defendant in this case does not mean that the Plaintiff committed serious acts of worship to the extent that it violates the principle of good faith or the principle of good faith; and (e) even if the Defendant believed the acquisition value on the balance sheet as it is and thus, it cannot be accepted as the Defendant’s assertion that it is worth protecting it (see, e.g., Supreme Court Decision 2005Du6306).

3. Conclusion

Since the judgment of the first instance is justifiable, the defendant's appeal is dismissed as it is groundless.