Cho High Court Decision 2008Da1955 (Law No. 917, 2008)

Even if the actual transaction price transfer margin is larger than the standard market price transfer margin, it is determined as actual transaction price.

After making a report of capital gains tax by the deadline of the final return, even if the actual transaction price confirmed and confirmed by the tax authority is larger than that of the standard market price transfer margin,

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing capital gains tax of KRW 52,422,320 against the Plaintiff on November 30, 2007 is revoked (the date of disposition stated in the complaint’s claim appears to be a clerical error).

1. Circumstances of the disposition;

A. On July 16, 2004, the Plaintiff acquired a total of KRW 1,189,000,000 from ○○○○-dong 120-1,112 square meters, and KRW 2,063 square meters per annum 119-3 square meters, 119-7 square meters per annum 492 square meters, 119-13 square meters per annum 119-13 square meters per annum, 241 square meters per annum 119-12 square meters, 22 square meters per annum 119-12 square meters per annum (hereinafter referred to as "each land of this case") and its ground buildings (hereinafter referred to as "the building of this case").

B. Thereafter, on July 5, 2006, the Plaintiff sold 1,757 square meters of 00 00 m2,063 m2,000 m24,700 m24,000 m24,000 m241 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m241 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2,00 m2

C. On September 30, 2006, the day prior to the deadline for the final return of tax base of transfer income, the Plaintiff: (a) paid KRW 604,392,279, which the Plaintiff purchased from the Defendant from the △△△△△, from the Defendant on September 30, 2006, as the acquisition price of the instant transferred land; and (b) KRW 724,80,000, as the transfer price of the instant transferred land; and (c) filed a preliminary return of KRW 14,238,131, which is calculated on the basis of the return, along with evidential documents, at the transfer price of the instant transferred land.

D.1) On November 30, 2007, the Defendant: (a) acquired each of the instant lands and the instant buildings in a lump sum of KRW 1,189,00,000; (b) determined such amount as above at the selling price of each of the instant lands; (c) as the value of each of the instant lands is unclear, the Defendant determined that the real acquisition price of the instant transferred land should be calculated in proportion to the value calculated according to the standard market price of each of the instant lands; (d) calculated the real acquisition price of the instant transferred land at KRW 411,423,665, based on the actual acquisition price of the instant transferred land at KRW 724,80,00,000, based on marginal gains from transfer, adjusted the Plaintiff to increase acquisition price and necessary expenses at KRW 77,235,82

2) After that, on January 8, 2008, the Defendant found any error in the process of calculating the actual acquisition value of the instant transferred land, and subsequently issued a disposition to reduce the transfer income tax for the instant transferred land by KRW 52,422,320 (hereinafter referred to as “instant disposition”) by applying the acquisition value newly calculated by applying KRW 474,491,473 to the actual acquisition value (hereinafter referred to as “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1 through 8, Gap evidence 4-1, 2, Eul evidence 1-4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The primary argument

원고가 ☆☆트로부터 이 사건 각 토지 및 건물을 매수할 당시 이 사건 각 토지 전체가 ☆☆트의 사업장 부지로 사용되고 있었고, 그 용도지역이 모두 일반주거 지역이었기 때문에 원고와 ☆☆트는 위 매매계약을 체결하면서 이 사건 각 토지의 필지별 가치의 우열을 구분, 특정함이 없이 평당 가격을 1,000,000원으로 정하고, 이 사건 건물은 ○○시의 도로개설로 인하여 곧 철거될 운명에 있어 매매대금을 정할 때 고려하지 않기로 하여 위 매매대금을 평당 가격인 1,000,000원에 이 사건 각 토지의 면접 합계인 1,189평(= 3,930㎡ ÷ 3.305)을 곱하여 매매대금을 1,189,000,000원으로 정하였으므로, 이 사건 양도토지의 실지취득가액은 604,392,279원(≒ 1,998㎡ ÷ 3.305 x 1,000,000원)이라 할 것임에도 피고는 이와 달리 이 사건 양도토지의 실지취득가액을 기준시가에 따라 안분하여 산정한 474,491,473원으로 보고 이 사건 처분을 하였는바, 이는 위법하다.

(ii)a preliminary note;

The plaintiff filed a preliminary return on the tax base of transfer income based on the standard market price at the time of filing a preliminary return on the transfer land of this case, but the preliminary return on the actual transaction price would be more economically favorable to the plaintiff. Accordingly, the defendant calculated the tax base of transfer income based on the standard market price, considering that the acquisition value of the transfer land of this case, which was acquired together with another real estate, is unclear, and as a result, the transfer income tax based on the actual transaction amount was more unfavorable to the plaintiff than the transfer income tax accrued from the standard market price. Accordingly, the plaintiff's preliminary return on the tax base of transfer income tax of this case was made by mistake. Thus, the defendant should revise the transfer value and acquisition value by the standard market price pursuant to Article 114 (4) and (5) of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 206). Accordingly, the disposition

(b) Related statutes;

The entry and reduction of the relevant Acts and subordinate statutes in the attached Table.

C. Determination

1) Determination as to the main place of origin

A. 1, 2, 5- 1, 2, 2- 7, 10- 2, 10- 13, 16, 17- 36, 38 through 40, and 9-1, 30-1, 20-1, 30-1, 20-1, 30-1, 30-1, 20-1, 30-1, 20-1, 30-1, 30, 40-1, 40, 200, 300-1, 200, 300, 200-1, 200, 300, 9-1, 300, 200, 9-1, 300, 200, 300, 9-1, 30,000, of each of the instant lands, which are planned to be sold.

In order for the Plaintiff to purchase each of the instant land and buildings from △△△, the Plaintiff’s purchase price was determined as KRW 1,189,00,000 by dividing the high value of each of the instant land by lots, and by multiplying the total area of each of the instant land by the purchase price is determined as KRW 1,189,00,000. However, as seen above, the following circumstances revealed in the fact of recognition, namely, the land category of each of the instant land is the land category, and the remaining land, including the instant transfer land, is a building site, the land category of which differs twice as at the time of the instant purchase and sale contract. Since land, among each of the instant land at the time of the instant purchase and sale contract, which was scheduled to be constructed among the instant land, could not be expected to increase significantly due to consultation on the acquisition of public land by ○○ market, and the sale and sale price of each of the instant land at each of the instant case was determined to have an impact on the market value of each of the instant land at each of the instant site.

Therefore, it is legitimate that the defendant calculated the acquisition value of the transferred land of this case by dividing it as the standard market price at the time of acquisition under Article 100 (2) of the former Income Tax Act, Article 166 (4) of the former Enforcement Decree of Income Tax Act (amended by Presidential Decree No. 19890 of Feb. 28, 2007), and Article 48-2 (4) of the Enforcement Decree of Value-Added Tax Act. Thus

2) Determination as to the conjunctive claim

Article 96 (2) of the former Income Tax Act applicable at the time of the transfer of the land in this case provides that the transfer value of the land (referring to the land category which shall be registered in the cadastral record under the Cadastral Act) or a building (including the facilities and structures attached to the building) shall be based on the standard market price at the time of the transfer of the relevant property in principle, but the transfer value of the relevant property shall be based on exceptional cases where the transfer value may be determined based on such actual transaction value, and one of them is one of the cases where the transferor files a return with the head of the tax office having jurisdiction over the place of tax payment by the due date of final return under Article 110 (1) along with evidential documents (Article 114 (4) (proviso) of the same Act provides that the transfer value and the actual transaction value which the head of the tax office or the director of the regional tax office has made a preliminary return or final return on transfer income tax base shall be corrected by changing the transfer value or actual transaction value so that it is impossible to determine the transfer value or actual transaction value at the time of tax base.

In light of the above Acts and subordinate statutes and legislative intent, the Plaintiff reported the actual transaction value at the time of transfer and at the time of acquisition to the head of the district tax office having jurisdiction over the place of tax payment along with evidential documents, and the head of the district tax office having jurisdiction over the place of tax payment confirmed differently from the actual transaction value reported by the Plaintiff and corrected the tax base and tax amount for transfer income. In such a case, the head of the district tax office having jurisdiction over the place of tax payment shall rectify the transfer income and tax amount by making the amount confirmed under the proviso of Article 114 (4) of the former Income Tax Act as the transfer value or acquisition value, and as long as the actual transaction value is confirmed, there is no room to determine or correct the transfer value or acquisition value by means of the standard market price, etc. pursuant to Article 96 (5) of the former Income Tax Act, on the ground that the Plaintiff made a false determination that the calculation of transfer margin based on the actual transaction value is more favorable than the calculation of transfer margin based on the standard market price,

Therefore, there is no reason for the plaintiff's partial objection.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.