Cho High Court Decision 201No079 (201.03.09)

Since the acquisition value of the portion to be deemed a transfer cannot be confirmed in case of onerous donation, the conversion acquisition value should be applied.

In the calculation of gains on transfer, it is difficult to regard the amount of debt as the actual transaction price in the calculation of gains on transfer, and merely because it is the standard market price of the part to be deemed a transfer in the case of onerous donation, it is difficult to confirm the actual transaction price, and thus, the acquisition price should

2011Gudan14015 Revocation of Disposition of Imposing capital gains tax

LAA

The director of the tax office.

November 25, 2011

January 13, 2012

1. The Defendant’s disposition against the Plaintiff on August 2, 2010, which exceeds 34,008,060 won, among the disposition of KRW 667,714, and 530 for the tax year 2006.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

The Defendant’s disposition of KRW 67,714,530 for the Plaintiff on August 2, 2010, which exceeds KRW 6,797,546, among the disposition of KRW 667,714,530 for the year 206, shall be revoked.

1. Details of the disposition;

A. On March 31, 2005, the Plaintiff received 60% shares of 000-0 00-0 m2 and 1,478.4 m2, each of the 60% shares of the 1,400 m2, Gangnam-gu Seoul OOdong and 00-0 m2, 588.74 m2 (hereinafter “instant real estate shares”) from her husband, and received the burden of acquiring the debts of 1,400 m2,882.

나. 원고는 2006. 2. 4. 이 사건 부동산 지분을 주식회사 BBBBB에게 양도하고 양도소득세 예정신고를 함에 있어서，㉠ 전체 양도가액을 실지거래가액인 4，980，000，000원으로，㉡ 전체 취득가액을 환산가액 4，156，358，520원으로，㉢ 증여가액 중 채무액 비율을 49.84%( = 14，001，460，882원 ÷ 2，809，054，065원)로，㉣ 부담부증여의 증여가액 중 인수채무액에 상당하는 부분으로 소득세법 제88조 제1항에 의하여 양도로 보는 부분(이하 '양도의제증여부분'이라 하고, 이를 제외한 부분을 '나머지증여부분'이라 한다)의 양도가액을 2，482，032，000원(= 4，980，000，000원 x 49.84%)으로，㉤ 나머지증여부분의 양도가액을 2，497，968，000원(= 4，980，000，000원 x 50.16%)으로，㉥ 양도의제증여부분의 취득가액을 그 양도가액의 환산가액인 2，290，406，520원(= 2，482，032，000원 × 취득 당시 이 사건 부동산 지분의 기준시가 2，775，223，500원 ÷ 양 도 당시 이 사건 부동산 지분의 기준시가 3，007，410，900원)으로，㉦ 나머지증여부분의 취득가액은 원고가 양도일로부터 소급하여 5년 이내에 그 배우자로부터 증여받은 것이므로 구 소득세법(2006.12.30.법률 제8144호로 개정되기 전의 것, 이하 '법'이라고 한다) 제97조 제4항을 적용하여 당해 배우자 최BB의 2004.6. 30. 취득 당시 실지거래가액 3，720，000，000원 중 위 50.16%인 1，865，952，000원으로 하여, 양도의제증여부분 에 대하여 150，130，339원의 양도차익, 67，558，653원의 양도소득세 총결정세액, 나머지 증여부분에 대하여 246，583，237원의 양도차익, 68，552，969원의 양도소득세 총결정세액으로 계산한 후 총 136，111，622원(= 67，558，653원 + 68，552，969원)의 양도소득세를 신 고・납부하였다(뒤의 2. 다 〈표1> 참조).

C. For this reason, the Defendant appears to have been justified in the report and payment of the remaining donated portion. However, on August 2, 2010, on the premise that the acquisition value of the transferred constructive donated portion should be calculated at KRW 1,400,160,882, the Defendant reduced the acquisition value of the transferred constructive donated portion at KRW 890,245,636 (= KRW 2,290,406,520 - 1,400,160,882) to increase the total amount of gains on transfer by reducing the acquisition value of the transferred constructive donated portion to the total amount of gains on transfer and 51.16% ( = 1,400,160,882 ± the donated value ± the donated value 2,736,405,720). In addition, on August 2, 2010, the Defendant issued the tax notice at KRW 6714,305,670,697.7.67

[Reasons for Recognition] Facts without dispute, Gap evidence of l or 3, Eul evidence of l (including above numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Article 163(9) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008; hereinafter referred to as the “Enforcement Decree”) is not applicable to the calculation of the transfer income tax with respect to the part acquired as a onerous transfer, and the acquisition value is to be calculated like in ordinary cases concerning the onerous transfer. Since it is impossible to verify the actual acquisition value, the real estate share in this case is calculated at the rate of the standard market price (4531239,937 calculated at 400,000 x2736,7405,720, 700, 720, 307, 309, and 309, 307, 309, and 97, 306, 301, and 47, 309, and 309, 157, 306, 196, 47.7.16, .7.7

B. Summary of the defendant's assertion

The Plaintiff’s transfer value and acquisition value shall be calculated based on the actual transaction value under Article 96(2)4 of the Act as it constitutes a short-term transfer within one year. The transfer value for the constructive transfer donated portion shall be 2,547,768,000 won equivalent to 51.16% of the total actual transfer value in the gift amount for the total amount of 4,980,000,000 won. However, in the case of a onerous donation in which a donee takes over a donor’s obligation, the amount of obligation is equivalent to the portion to be deemed a transfer among the donated assets. In the calculation of the actual transaction value of the transfer income tax as the actual transaction value, the acquisition value of the real estate acquired by the donation portion shall be the actual transaction value at the time of acquisition under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act (hereinafter referred to as “Inheritance Tax and Gift Tax Act”) and the real acquisition value of the real estate portion shall be the actual transfer value, and the acquisition value of the real estate portion shall be 4060,27,25,27,27,26,20.

C. The contents of the initial report, the Defendant’s disposition, and the Plaintiff’s assertion are arranged in the table as follows:

(d) Related statutes;

It is as shown in the attached Form.

E. Determination

(1) Judgment as to the Plaintiff’s assertion

(A) Application of Article 159 of the Enforcement Decree

Article 159 of the Enforcement Decree delegated by Article 100(3) of the Act provides that the acquisition value and transfer value of the part to be deemed a transfer in an onerous donation shall be the amount calculated by multiplying the value of the relevant asset under Articles 96 and 97(1)1 of the Act by the ratio of the part equivalent to the amount of debts to the value of the relevant asset. This is reasonable interpretation in accordance with the latter part of Article 88(1) of the Act, and it seems not to be in violation of the superior Acts and subordinate statutes (see Supreme Court Decision 2006Du7171, Apr. 26, 2007). This provision appears to be a provision for calculating gains on transfer in imposing capital gains tax on a person who has donated an onerous donation. However, in imposing capital gains tax on a person who has transferred an asset with an onerous donation, it appears that the provision can be applied mutatis mutandis to calculating gains on transfer in the part to be deemed a transfer of the donated asset, and that the transfer value and acquisition value can be calculated by multiplying the value of the relevant asset by Article 96(3).

(b) Calculation based on the actual transaction price

However, since the Plaintiff’s acquisition and transfer of the deemed donation portion constitutes a short-term transfer within one year, the transfer value and acquisition value pursuant to Article 96(2)4 of the Act should be calculated based on the actual transaction value. As such, the transfer value and acquisition value of the deemed donation portion may be calculated by multiplying the actual transfer value of the instant real estate share under Articles 96 and 97(1)1 of the Act by the ratio of the portion equivalent to the amount of debts to the actual transfer value, and the actual acquisition value to the actual transfer value.

(C) Actual transaction value as transfer value

Under the provisions of Article 96 of the Act, the actual transfer value of the real estate in this case is 4,980,000,000, the actual transfer value of the transferred constructive gift is 2,547,768,000 (i.e., 4,980,000,000) x the acquired obligation 1,400,160,882 ± the donated amount 2,736,405,720) (in this regard, there is no dispute between the parties).

(D) The actual transaction price as acquisition price

Meanwhile, the actual acquisition value of the donated portion shall be calculated by multiplying the value of the relevant asset under Article 97 (1) 1 of the Act by the ratio of the amount equivalent to the amount of debts to the value of the donated asset. If Article 163 (9) of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is applied as it is, the value of the relevant asset is the value evaluated under Articles 60 through 66 of the Enforcement Decree and thus the amount of obligation to take over is real acquisition value. However, in calculating gains on transfer, the actual transaction value which serves as the basis for calculating gains is not the market value but the actual transaction value but the actual transaction value at the time of the transfer itself or at the time of the transaction (see, e.g., Supreme Court Decision 97Nu629, Feb. 9, 199); the acquired value of the donated portion shall be 00 won, and the actual transaction value of the donated portion shall be 1000 won or more, and it is difficult to view the actual transaction value of the transferred portion as the standard market value.

(E) Judgment on the defendant's several arguments

1) The defendant asserts that the amount exempted from the obligation through an onerous donation is the actual transaction price of the transferred part, but it cannot be viewed as the actual transaction price.

2) In addition, in calculating the transfer income tax on the Plaintiff’s husband’s most BB, the Defendant asserts that the amount of the debt with respect to the constructive donation of transfer should be considered as the acquisition value in calculating the transfer income tax on the Plaintiff. However, in calculating the transfer income tax on the Plaintiff, the Defendant’s assertion that the transfer income tax on the constructive donation of transfer cannot be considered as the actual transaction value so long as the transfer value is based on the actual transaction value, and that the amount of debt that cannot be considered as the actual transaction value is not necessarily considered as the acquisition value in light of the fact that the transfer value on the most BB is not the basis that the Plaintiff should be applied as the acquisition value.

3) Also, considering the transfer value and acquisition value of the deemed donation in the instant disposition, even though the Plaintiff’s holding period is less than 9 months, the actual transaction value has increased by 82% during that period. Such results are unrealistic in light of the real estate transaction status.

(2) Sub-determination

The plaintiff's above assertion is justified within the above scope of recognition, and the defendant's disposition of this case exceeds 34,008,060 won, and the plaintiff's above argument 2 is without merit (However, since the plaintiff's above argument 1 is substantially accepted, the plaintiff's above argument 2 should not be examined further).

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.