Supreme Court-2018-Du-57452 ( October 31, 2019)

Whether the value of land, buildings, etc. falls under a case where distinction is unclear.

Since the Plaintiff and the Nonparty cannot be deemed to have transferred the instant land and buildings collectively, it does not constitute a case where the land and buildings, etc. under Article 100(2) of the former Income Tax Act are transferred together.

Article 100 (Calculation of Gains on Transfer of Income Tax Act)

2019Nu34380 Revocation of Disposition of Imposing capital gains tax

KimA

BB Director of the Tax Office

Seoul Administrative Court Decision 2017Gudan60065 Decided January 23, 2018

Seoul High Court Decision 2018Nu37986 Decided August 23, 2018

Supreme Court Decision 2018Du57452 Decided January 31, 2019

August 21, 2019

September 11, 2019

1. The defendant's appeal is dismissed.

2. The defendant bears the total costs of the lawsuit after the appeal.

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax for the year 2014 against the Plaintiff on July 12, 2016 (the purport of the claim stated in the complaint and the “On July 13, 2016,” referred to in paragraph 1 of the order of the first instance court, appears to be a clerical error) is revoked.

2. Purport of appeal

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

1. Scope of the judgment of this court;

The Plaintiff sought revocation of the disposition stated in the purport of the claim, and the court of first instance accepted the Plaintiff’s claim. The judgment prior to remanding the Defendant’s claim, which revoked the part against the Defendant regarding the x members among the disposition imposing the x members of this case, and only the Plaintiff appealed. The Supreme Court accepted the Plaintiff’s appeal and reversed and remanded the part against the Plaintiff in the judgment prior to remand. Accordingly, the scope of the judgment of this court is limited to the part against the Plaintiff, and the judgment prior to remand became final and conclusive.

2. Details of the disposition;

A. The plaintiff owned 1/2 shares of 202, 302, 402, 502, and 118.32 shares of 601 among 1/2 shares of 202, 302, 302, and 101 among 601 and shares of 118.32 shares of 1/300 among 601 (hereinafter "the real estate issue of this case"), and his father Kim OOOOOOO owned 1/2 shares of the land of this case and shares of 1/2 shares of 1,201, 301, 401, 501 and 101 of the building of this case, and shares of 701, 306, 306, 706, 306, 106, 306, 206, 206, 306, 206, 206, 306, 301.

B. On September 16, 2014, the Plaintiff transferred the instant real estate in KRW 0 billion to Gangnam and KimD (hereinafter “transferees”), and KimO’s transfer to the transferee on the same day, respectively. As to the instant real estate, the sales contract with the Plaintiff as the seller, and the sales contract with the KimO as the seller for the instant real estate was separately prepared, and the sales contract with the Plaintiff as the seller for the instant real estate was separately prepared, and each of the above sales contracts set the sales price for the instant real estate in KRW 0 billion and KRW 0 billion for the sales price for the instant real estate.

C. As to the developments leading up to the purchase of the instant real estate, the transferee was requested to request the acquisition of the instant real estate as to the instant real estate owned by the Plaintiff, and presented KRW 0 billion as the purchase price for the instant real estate, while negotiating the purchase of the instant real estate at a price lower than the market price on August 2014, 2014 through several adjustments, around August 2014, the transferee stated to the effect that “the Plaintiff was accepted and traded.”

D. On the other hand, KimO was deposited in the account of △△ Bank in the name of AAA, a company, which was operated by himself, from the purchase price of KimO real estate to KRW 0 billion, with the remainder of KRW 000,000,000, and used in the repayment of the company's debt to the financial institution and the refund of the rental deposit to its lessee, and there is no evidence that the Plaintiff received or used part of the purchase price of

E. After that, the Plaintiff reported and paid the transfer income tax to the Defendant with the transfer value of the instant real estate as KRW 0 billion. However, the Plaintiff and the Defendant deemed that the entire land and the building were transferred in a lump sum at KRW 00 billion, and that the distinction between the value of the land and the building is unclear. Therefore, the transfer value of the instant land and the building was divided according to the standard market price ratio of the entire land and the entire building, and then the transfer value of the instant real estate was calculated in proportion to the ratio of the Plaintiff’s ownership shares and the entire building’s sales value, in proportion to the standard market price ratio of the entire land and the entire building, and then the transfer value of the instant real estate was calculated in proportion to the ratio of the Plaintiff’s ownership shares and the entire building’s sales value, and then the Plaintiff notified the Plaintiff of the correction and notification of KRW xxx of the transfer income tax for the year

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff transferred the instant real estate in KRW 0 billion to the transferee on September 16, 2014, and that the KimO’s transfer of the instant real estate in KRW 0 billion to the transferee on the same day was based on a separate sales contract, not a blanket transfer. Therefore, the provisions of the calculated division under Article 100(2) of the Income Tax Act, premised on the case of a blanket transfer, cannot be applied to this case.

2) Of the instant building, the Plaintiff’s ownership and the part owned by KimO was newly constructed and used as separate independent buildings. In light of structural characteristics, there is a reasonable ground to deem that the transfer value of the instant real estate is less than KRW 0 billion, than KRW 0 billion in the transfer value of KimO’s real estate. Ultimately, the Plaintiff did not receive the remainder of the transfer value of the instant real estate from the assignee, and thus, the Defendant’s disposition, premised on the premise that the transfer value of the instant real estate is KRW 000,000, is in violation of the principle of substantial taxation and the principle of no taxation without law, is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 100(2) of the former Income Tax Act (amended by Act No. 12852, Dec. 23, 2014; hereinafter the same) and Article 166(6) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26982, Feb. 17, 2016; hereinafter referred to as “instant calculated provision”) provide that where the transfer value or acquisition value is based on the actual transaction value when calculating transfer margin for imposition of transfer income tax and the land and buildings are acquired or transferred together, they shall be kept separately, and where the distinction between the land and the buildings is unclear, they shall be kept separately. The instant calculated provision provides that a general and reasonable method for calculating the common acquisition value or transfer value is prescribed in proportion to the value calculated according to the standard market price at the time of acquisition or transfer, and it shall apply only where the land and buildings, etc. are acquired or transferred en bloc in light of their substance and purport, but the distinction of such value is unclear.

Meanwhile, a taxpayer may choose one of several legal relationships to achieve the same economic purpose when conducting economic activities, barring any special circumstance, the tax authority should respect the legal relationship chosen by the parties (see Supreme Court Decision 2000Du963, Aug. 21, 2001).

2) According to the above facts, it is reasonable to view that the Plaintiff among the instant land and buildings, the Plaintiff separately transferred the instant real estate in KRW 0 billion, and that KimO separately transferred the instant real estate in KRW 0 billion to the transferee, and that the Plaintiff and KimO did not deem that the Plaintiff and KimO transferred the instant land and buildings en bloc, solely on the grounds that the date of preparation of each sales contract, the buyer, document forms, and other provisions are identical, or the transferee share 1/2 shares each of the instant land and buildings after the acquisition of the instant land and buildings by combining the instant building.

3) As to this, the Defendant asserts that the Plaintiff, KimO, and transferee should be deemed to have transferred the instant land and buildings collectively, in light of the fact that the Plaintiff, KimO, and transferee separately from the real estate sales contract (Evidence A1 and 2), and that on the same day, the entire land and buildings in this case are subject to sale and purchase, and the real estate sales contract (Evidence B-3) with the sales amount of KRW 00 billion is prepared, the Plaintiff and KimO shall be deemed to have transferred the instant

The contract for sale and purchase of the pertinent real estate was finally concluded according to each real estate sales contract (A evidence No. 1 and No. 2) with each of the KRW 0 billion and KRW 00 billion with each of the KRW 0 billion, since the contract for sale and purchase of the pertinent real estate was KRW 00 billion with the sales price for the instant real estate and KimO real estate, and there was a difference between the KRW 00 billion, which is the sum of the sales price for the instant real estate and KimO real estate. Therefore, it cannot be deemed that the instant real estate and KimO real estate were transferred in a lump sum with the sales price of KRW 00 billion.

In addition, on September 16, 2014, the date of the sales contract for the pertinent real estate and KimO real estate, the Defendant received KRW 0 billion from the transferee in addition to the purchase price of KRW 00 billion under the sales contract, which was transferred from the Plaintiff to the Plaintiff’s account, which was the date of the sales contract for the instant real estate and KimO real estate. This appears to have been based on the pre-sale contract for the said real estate, and therefore, it was true. However, according to the Defendant’s assertion, the purchase price is KRW 00 billion (=0 billion +0 billion) and there was difference between KRW 00 billion under the pre-sale contract for the said real estate and KRW 11, and KRW 21-1 through KRW 3, respectively, the Defendant’s assertion that the purchase price received from the Plaintiff and KimO was KRW 00 billion in total and KRW 00 billion in total to the Plaintiff [the Plaintiff’s account of KRW 00 billion, KRW 0000,000 in total,000.

4. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal against it is dismissed as it is without merit. It is so decided as per Disposition.