Cho High Court Decision 2008Do1150 (No. 23, 2008)

Where the exchange of real estate is accompanied by the settlement procedure after the market value appraisal, it is deemed that there was an actual transfer value.

In the event that the exchange of real estate is accompanied by the settlement procedure for the difference of the appraisal value due to the market price appraisal, it would be the case where the actual transfer value can be confirmed.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The disposition of imposition of capital gains tax of KRW 228,809,230 and KRW 5,595,600, which the Defendant rendered to the Plaintiff on November 9, 2007, shall be revoked.

1. Details of the disposition;

A. On June 7, 2005, the Plaintiff acquired a building of 532-1, 426.10 square meters, 532-5, 87.90 square meters and above ground (hereinafter “instant real estate”).

나. 원고는 2006. 2. 2. 이 사건 부동산을 최◆◆ 소유의 광주시 □□읍 ●●●리 273-3, 207-6, 274-28 토지 및 지상건물(이하 '이 사건 취득부동산')과 교환하여 양도하였다.

C. The Plaintiff reported the transfer income tax according to the standard market price and did not have the transfer margin.

D. In the event that the actual transaction price of the instant real estate is confirmed and transferred within one year after its acquisition, the Defendant considered that the actual transaction price of the instant real estate should be calculated based on the actual transaction price, and then imposed capital gains tax of KRW 234,404,830 calculated on the basis of deeming the actual transaction price of the instant real estate as KRW 2,050,000,000, and the actual acquisition price was 1,450,000,000 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, purport of whole pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) In the case of transfer by December 31, 2006, as the instant real estate, the transfer margin should be calculated based on the standard market price. Therefore, the instant disposition that calculated the transfer margin based on the actual transaction price is unlawful.

(2) Even if transfer margin of the instant real estate should be based on the actual transaction value, the actual transfer value of the instant real estate is KRW 1,500,000 (the value under the exchange contract) or KRW 1,600,619,642 (the actual transaction value calculated on the premise that the standard market value at the time of transfer is 70% of the actual transaction value). Therefore, the instant disposition that reported the actual transfer value of the instant real estate to KRW 2,50,000,000 is unlawful.

B. Determination

(1) As to the first argument

Where the real estate is transferred not later than December 31, 2006, the transfer value shall be based on the standard market price at the time of transfer, but where the real estate is transferred within one year after its acquisition, the transfer value shall be based on the actual transaction value (Article 96(1) and (2)4 of the Income Tax Act). Although the real estate in this case is transferred not later than December 31, 2006, it constitutes a transfer within one year after its acquisition, the transfer value shall be based on the actual transaction value. Accordingly, the Plaintiff’s above assertion is without merit.

(2) On the second argument

(A) The actual transfer value of the pertinent asset, which serves as the basis for calculating the amount of capital gains tax, refers to the value that the transferor transfers the asset at the time of the transaction and received as the price for the transfer and that is objectively recognizable by the sales contract and other documentary evidence. In the event that the transaction is an exchange of assets, it shall be a value exchange based on the market value of the object, which is particularly a standard and entails settlement procedures on the difference in the appraised value of the object of exchange, it shall be deemed that the actual transfer value can be confirmed, but in the case of a simple exchange of assets, the actual transfer value shall not be confirmed (see, e.g., Supreme Court Decision 2003Du14123, Mar. 26,

(나) 을4, 5, 6, 7호증의 각 기재에 변론 전체의 취지를 종합하면, 주식회사 ★★★★평가법인이 2006. 1. 18.자를 기준으로 이 사건 취득부동산에 대한 시가감정을 하여 감정평가액이 1,444,898,000원으로 나온 사실, 2006. 2. 1. 원고와 최◆◆가 이 사건 부동산을 2,050,000,000원으로, 이 사건 취득부동산을 1,400,000,000원으로 각 평가하여 교환계약을 체결하고 2. 2. 부동산을 교환한 사실, 이 사건 부동산에 대하여는 대출금과 이자 합계금 1,325,858,000원이 있고 이 사건 취득부동산에 대하여는 대출금과 이자 합계금 55,079,769원과 임대차보증금 65,800,000원이 있었는데 원고가 최◆◆에게 부동산의 평가액에 위 채무액을 반영하여 산출한 정산금 554,978,231원을 지급한 사실을 인정할 수 있고 이에 어긋나는 갑4호증의 기재는 믿을 수 없다.

(C) According to the above facts, since the exchange of the instant real estate was conducted based on the market price appraisal and accompanied by the settlement procedure for the difference in the appraisal value, the actual transfer value of the instant real estate is 2,050,000 won. Therefore, the Plaintiff’s above assertion is without merit.

(3) The instant disposition is lawful.

3. Conclusion

The plaintiff's claim is dismissed.