early 208west2256 ( October 12, 2009)

Whether calculating the acquisition value based on the area after replotting violates the Constitution in the case of replotting

In the case of replotting, the provision that the acquisition value shall be calculated by multiplying the scheduled area for replotting by the standard market price per unit at the time of acquisition shall not be in violation of the Constitution

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.

The Defendant’s disposition of imposing capital gains tax of KRW 135,208,390 to the Plaintiff on January 4, 2008 is revoked.

1. Details of the disposition;

가. 원고는 1960. 3. 20. 환지 전의 **시 **동 136-11, **시 ●●동 231-9, 235-2, 236-1, 228-4 등 5필지 1,057.84㎡를 취득하였고(그 후 위 각 토지는 아래 표 와 같이 1972. 6. 13. 환지되어 ●●동 127-12 대 742.8㎡ 및 ●●동 127-14 대 22.1 ㎡로 되었다), 다시 1984. 11. 7. 진주시 ●●동 127-13 대 53.9㎡를 취득하였는데, 그 후 이들 각 토지는 1985. 9. 25. 진주시 ●●동 127-12 대 818.8㎡로 합병되었다(이하 합병 후 위 토지를 '이 사건 토지'라 한다), 또한 원고는 1998. 10. 1. 이 사건 토지상에 건물(관람집회시설, 근린생활시설) 919.09㎡(이하 '이 사건 건물'이라 한다)를 신축하여 취득하였다. 한편, 원고는 2007. 5. 10. 이 사건 토지 및 건물을 소외 주식회사 @@에게 35억 원에 양도하였다.

B. On July 31, 2007, the Plaintiff filed a preliminary return on the tax base of capital gains tax with regard to the transfer of the instant land and building with the actual transaction amount, and sought a refund of KRW 48,439,287,87, which is equivalent to the capital gains tax on the land of this case calculated by adding the transfer gains accruing from the conversion of part of the instant land to the transfer gains of this case (127-14, 22.1m2, 14, 2007) based on the conversion acquisition value calculated based on the “pre-sale area of land before the annexation” to the Defendant, on the ground that the transfer gains accrued in excess of the actual transfer value. The conversion acquisition value may exceed the transfer value on November 5, 2007, after paying the return, the converted acquisition value may exceed the transfer value. In this case, the transfer gains from the conversion acquisition value of part of the instant land of this case may be aggregated with the transfer gains from other land, etc. (reproperty-1164).

C. However, in the case of the land acquired before December 31, 1984 before and after the date of acquisition, the Defendant calculated the return acquisition value on the basis of the "area after replotting" under the proviso of Article 77 (1) and subparagraph 2 of the Enforcement Rule of the Income Tax Act in the case of the land designated as reserved land before December 31, 1984, regardless of whether it had been after the date of acquisition, and in such case, on the ground that the conversion acquisition value calculated on the basis of the "area before replotting at the time of filing a request for correction," calculated on the ground that the transfer loss does not occur because the conversion acquisition value calculated on the basis that the conversion acquisition value calculated on the basis of the "area after replotting" of the "area after replotting" calculated on January 4, 2008 by converting the acquisition value into the "area after replotting" calculated on the basis of the standard, and then decided to additionally impose the transfer income tax amount of 313,394,253 won after deducting the previously paid tax amount.

[Reasons for Recognition] Unsatisfy, Entry of Evidence 1, 2, Evidence 1 to 5 (including paper numbers), All the arguments

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 88 (2) of the former Income Tax Act provides that the transfer of land category or parcel number shall not be deemed to be a case of a change in a replotting disposition, but Article 77 (1) (proviso) and (2) of the Enforcement Rule of the Income Tax Act (hereinafter referred to as the "the provision of this case") provides that the acquisition value shall be calculated on the basis of the expected land substitution area in the case of a land acquired before December 31, 1984, which is designated as a reserved land for replotting prior to that time. This is inconsistent with Article 88 (2) of the Income Tax Act and Article 77 (3) of the Enforcement Rule of the Income Tax Act as well as the opposite interpretation of Article 77 (3) of the Income Tax Act. Therefore, the disposition of this case is unlawful since the transfer income tax on the land of this case is calculated on the basis of the converted land acquisition

(b) Related statutes;

The entries in the attached statutes are as follows.

C. Determination

However, Article 88 (1) of the former Income Tax Act provides that a transfer shall not be deemed a transfer where a land category or a lot number is changed due to a replotting disposition. This is excluded from a transfer which is subject to the transfer income tax in the case of a replotting disposition, and it cannot be deemed a mother law for the method of calculating the acquisition value in the case of a land subject to a replotting disposition. In addition, the proviso of Article 77 (1) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 138 of Apr. 3, 200) provides that the acquisition value shall be calculated by the method of "unit price per unit at the time of acquisition x the standard market price per unit" of the former Enforcement Rule of the Income Tax Act (amended by Presidential Decree No. 1664 of Dec. 31, 199) as well as the methods of calculating the acquisition value of the land in this case cannot be deemed as invalid by the above provision of Article 167 (1) 1 of the former Enforcement Rule of the Income Tax Act (amended by Presidential Decree No. 20 of Dec. 31, 1999).

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and it is so decided as per Disposition.