In cases where a land substitution is designated before the time of transfer or acquisition under Article 98 of the former Income Tax Act and Article 162 of the Enforcement Decree of the same Act after a sales contract with the previous land before the designation of the land substitution is concluded, whether the acquisition value or transfer value shall be calculated based on the area of the previous land and the standard market

In a case where a land as a subject-matter of a land substitution is used in a state where a land substitution is designated as an object of a sale, the location and reputation of the previous land shall not be considered, but in order to calculate gains on transfer, to the extent that the transaction price is usually determined by the location and reputation of the land substitution, the area of the previous land and the standard market price shall not be based on the size and standard market price of the land substitution. However, in contrast, in a case where the previous land before a land substitution is designated as an object of a sale, the sale price shall be determined by the location and reputation of the previous land, not the land substitution, generally in light of the empirical rule. Thus, even if the time of transfer or acquisition as prescribed in Article 98 of the former Income Tax Act and Article 162 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 15604 of Dec. 31, 1997), in order to calculate gains on transfer, the acquisition price or transfer price shall not be based on the standard market price and the size of the previous land and the standard market price at the area.

Articles 98 and 99 (1) 1 (a) of the former Income Tax Act, Article 164 (1) and (9) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 15604 of Dec. 31, 1997), Article 77 (1) 1 of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Prime Minister No. 631 of Apr. 23, 1997)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jae-young and 1 other, Counsel for plaintiff-appellant)

Seoul High Court Decision 201Na1446 decided May 1, 201

Head of the Tax Office

1. The Defendant’s imposition disposition of KRW 3,975,420 against the Plaintiff on May 15, 1997 in excess of KRW 3,91,370 among the imposition disposition of KRW 3,91,370 against the Plaintiff shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Litigation costs shall be borne by the plaintiff.

The Defendant’s imposition of capital gains tax of KRW 51,138,370 as of August 1, 1997 against the Plaintiff and the imposition of KRW 3,975,420 as of May 15, 1997 is revoked.

1. Details of taxation; and

The following facts do not conflict between the parties, or if Eul's evidence Nos. 2, 3-1, 2, 4, 5, 6, 1-1 through 11 of the evidence No. 1-2, 2, 4 through 9, 5, 6 of Eul's evidence No. 3-1, 2, 4 through 9, 5, 6 of Eul's evidence No. 13-1, 2, 4, 14-1, 14-2 of the evidence No. 14-1, and 2 of the evidence No. 2, and there are no objections otherwise.

A. On April 27, 1991, the Plaintiff purchased the 1,941m2 from the Non-party's mobile leapon, 171m2, Mag-dong, Mag-dong, 171m2 from the non-party's mobile leapon, and acquired it by completing the registration of ownership transfer on the 3

B. The plaintiff, registered pursuant to Article 6 of the Housing Construction Promotion Act on January 3, 1996, sold to the non-party 1,941 square meters in 792,450,000 square meters in a national housing construction site under Article 66 (1) of the Act on the Regulation of Tax Reduction and Exemption (hereinafter referred to as the "Act"), which is the non-party 1 or 2 land in this case, and completed the registration of ownership transfer for each of the above land (hereinafter referred to as the "non-party 1 or 2 land in this case") on May 15 of the same year.

C. On October 16 of the same year, the instant land was incorporated into a land readjustment project district in the YN 2 Zone, and was designated as the said land scheduled for substitution on October 16 of the same year, the sum of 16 block 16 block 1, 159.4 square meters, 27.22 square meters of 14 block 2, 27.22 square meters of 6 block 3 block 16.36 square meters, and 1,014.2 square meters of 6 block 4 block 16.22 square meters (hereinafter “land scheduled for substitution”).

D. On December 21, 1996, the Plaintiff voluntarily paid KRW 17,767,850,00,000, calculated as indicated in the report column of the attached tax account statement [Provided, That in calculating the transfer value of each of the of the of the of the of the of the of the instant lands, the Plaintiff calculated the transfer value of each of the instant lands according to the standard market price (individual publicly notified land price) in accordance with Articles 105, 106, and 107, the Plaintiff calculated the transfer value of each of the instant lands as KRW 192,50,80,000, KRW 120,342,00,000, KRW 120,767,850,000 as calculated as indicated in the attached tax account statement [the Plaintiff calculated the transfer value of each of the instant lands, the transfer value of each of the instant land x 32 square meters x 184,000, KRW 2084,081,08400,00.

E. However, at the time of the transfer date ( October 23, 1996, which is the date of the sale price settlement), the Defendant shall calculate the value of the land scheduled for substitution on the basis of the size of the land scheduled for substitution and the standard market price. While the land No. 2 in this case is a predeveloped and answer, the land reserved for substitution on the other hand, which is the actual site with development gains under a land substitution and rearrangement project, is located in the previous land and its location, shape, road, traffic conditions, etc. have been significantly improved, the previous individual land price shall not be applied as it is in calculating the standard market price of the land scheduled for substitution as in the above report, on May 15, 1997; the standard market price of the land scheduled for substitution on the previous land; the area of the previous land is 1,909 square meters; the amount is 184,000 square meters per square meter of the officially assessed land 】 1,014 square meters of the land scheduled for substitution on the basis of 30.4 square meters per x 301,304440.304 square meters of the gold.

F. The Defendant issued a disposition to reduce the tax amount of the transfer income tax of this case from KRW 30,545,90 to KRW 52,57,590 to KRW 52,590 to KRW 30,57,590 to KRW 30,590 to KRW 7,82,570 to KRW 57,590 in the initial disposition, even though the tax amount of the transfer of this case is less than KRW 19,56,888 in the initial disposition, under each of the provisions of Article 31 of the Enforcement Rule thereof.

G. On June 30, 1997, the plaintiff filed a request for examination with the Commissioner of the National Tax Service for the initial disposition, and the Commissioner of the National Tax Service rendered a decision on August 22, 199 to calculate the standard market price of the land to be reserved for replotting in this case on the ground that "the first disposition is erroneous in the calculation of the standard market price of the land to be reserved for replotting in this case, as well as the proviso to Article 99 (1) 1 (a) of the Act and Article 164 (1) of the Enforcement Decree thereof (amended by Presidential Decree No. 15191, Dec. 31, 1996; hereinafter the same shall apply) of the Enforcement Decree thereof."

On the other hand, on October 23, 1997, the Plaintiff filed a request with the Director of the National Tax Tribunal for a trial on the grounds of objection to the review and decision, but received a decision of dismissal on December 29 of that year.

H. In calculating the standard market price of the instant reserved land pursuant to the purport of the review and determination on April 23, 1998, the Defendant: (a) calculated the standard market price of the instant reserved land for replotting; (b) calculated the same 70-1 square meters and 2,539 square meters; (c) calculated the land category, public regulation, land use status, topography, road surface, convenience facilities, accessibility to hazardous facilities, etc.; (d) calculated the portion of the instant reserved land for replotting with 16 block 1,60, 959.4 square meters and 349,60, 14 block 200, 27.3 square meters and 16.3 square meters of 6 block 16.32 square meters of the instant reserved land for replotting, 368,000, 6 block 402,240 square meters per square meter; and (c) calculated the remainder of each of the instant disposition for rectification and re-assessment of 305 square meters and 505 square meters of the amount of capital gains tax; (d) calculated 305050.

2. Whether each taxation of this case is legitimate

A. The parties' assertion

The defendant asserts that "each taxation disposition of this case is legitimate in light of the circumstances of the taxation disposition and the provisions of relevant statutes."

Article 99 (1) 1 (a) of the Act provides that "the standard market price of the land to be reserved shall be determined based on the actual size of the land to be reserved." Article 99 (1) 1 (a) of the Decree provides that "The standard market price of the land to be reserved shall be determined by the immediately preceding standard market price in the application of the provisions of Article 99 (1) 1 (a) of the Decree." Thus, unless the new standard market price is publicly announced in 196, the land to be reserved shall not be included in the pre-sale of the pre-sale of the pre-sale of the pre-sale of the pre-sale of the pre-sale of the land, and the pre-sale of the pre-sale of the pre-sale of the land shall not be included in the pre-sale of the pre-sale of the pre-sale of the land (see Article 99 (1) 1 (a) of the Act and Article 164 (1) 1 (2) of the Decree, even if the pre-sale of the pre-sale of the pre-sale of the land shall not be announced.

B. Relevant statutes

Article 99 (1) 1 (a) of the Act provides that the standard market price of the land shall be the officially assessed individual land price under the Public Notice of Values and Appraisal of Lands, etc. Act (hereinafter referred to as the "officially assessed individual land price"): Provided, That in applying the provisions of Article 99 (1) 1 (a) of the Act, the value of the land which has no officially assessed individual land price shall be the amount appraised by such a method as determined by the Presidential Decree in consideration of the publicly assessed individual land price of neighboring similar lands, and Article 164 of the Decree provides that "the amount appraised by such method as determined by the Presidential Decree" in paragraph (1) of the same Article means the value appraised by the head of the district tax office having jurisdiction over the place of tax payment in accordance with the comparative table under Article 10 (2) of the Public Notice of Values and Appraisal of Lands, etc. of Lands, etc. of Lands, in case where the new standard market price is acquired or transferred before the new standard market price is publicly notified, the value of the land at the time of transfer or acquisition shall be determined by the previous standard market price.

(c) Markets:

(1) In full view of the provisions of the above-mentioned Acts and subordinate statutes, when a parcel of land is designated as the object of the sale of the previous land, the location and reputation of the previous land is not subject to consideration, and the sale price of the previous land is to be determined by the location and reputation of the land as well as the transaction price of the land scheduled for substitution in order to calculate transfer margin, as the transaction price is usually determined by the location and reputation of the land scheduled for substitution, not based on the size and standard market price of the previous land, but on the basis of the size and standard market price of the previous land. However, if the previous land before the land scheduled for substitution is designated as the object of the sale, not the land scheduled for substitution, is ordinarily determined by the empirical rule by the location and reputation of the previous land which is not the object of the sale. Thus, even if the land scheduled for substitution was designated before the time of transfer or acquisition (the date of liquidation) under Articles 98 and 162 of the Decree, the sale and purchase price should not be determined based on the standard market price, i.e. the area of the previous land and the standard market price at 96.

(2) However, if Gap evidence Nos. 6, Eul evidence Nos. 11, Eul evidence Nos. 11-3-9, Eul evidence Nos. 13-4 and Eul evidence Nos. 13-4 were collected in the whole purport of pleadings, the plaintiff sold each of the land of this case to the non-party company on Jan. 3, 1996 and the purchase price of this case was fully paid on Oct. 23, 196, and the non-party company completed the registration of ownership transfer for each of the land of this case on Nov. 27, 196. The second land of this case was incorporated into a land readjustment project, and the land No. 2 was established on Mar. 23, 193, and the sale price of each of the land of this case was no contrary to the standard market price of the previous land substitution. Thus, according to the facts that the sale price of the land of this case and the land of this case, the sale price of the land of this case was no more than the standard market price of land substitution.

(3) Meanwhile, as long as the transfer value of the instant land No. 2 is to be calculated based on the previous land area and the standard market price at the time of the transfer of the previous land, the remaining part except for the Plaintiff’s assertion that it should be based on the standard market price at the time of the transfer of the previous land (the officially assessed individual land price in 1996) is premised on the premise that the transfer value should be calculated based on the area of the reserved land for replotting. As seen in the preceding paragraph, there is no reason to further

(d) The calculation of a legitimate tax amount;

Based on the above circumstances, if the transfer value of each of the lands of this case is calculated on the basis of the following circumstances, 357,144,000 won [32 square meters x 184,000 won x 184,000 won x 184,000 won x 184,000 won / 2 land] : Provided, That there is no dispute over whether the officially assessed land price of this case in 1996 for each of the lands of this case was 184,000 won per square meter 120,342,000 won for acquisition value and other necessary expenses 2,329,200 won for each of the lands of this case and there is no dispute between the plaintiff and the defendant as to the legitimate tax amount of capital gains tax and agricultural special taxes following the transfer of this case, if calculating the transfer income tax amount of this case, the transfer income tax amount of 52,057,590 won and agricultural special tax amount of 391,37

Therefore, the portion of each taxation of this case in excess of the amount of tax notified (51,138,370 won) by a legitimate tax amount (52,057,590 won) exceeds the amount of tax assessed (51,138,370 won), and the portion exceeding 3,91,370 won out of the agricultural special tax shall be revoked by unlawful means, and the remainder shall be lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remainder is dismissed without any grounds. It is decided as per Disposition by applying Article 8 (2) of the Administrative Litigation Act and the proviso of Article 92 of the Civil Procedure Act to the litigation cost (attached Form omitted).

Judges Lee Lee-dae-young and Lee Chang-chul