Busan District Court Decision 2008Guhap109 ( August 28, 2008)

National High Court Decision 2007Da1996 ( December 04, 2007)

Method of calculating the transfer value to be treated as transfer in onerous donation;

The actual transaction price refers to the actual transaction price rather than the market price, and in the case of onerous donation, the amount to be considered as the transfer cannot be considered as the amount of obligation, and in the case of donation, the actual transaction price cannot be confirmed at the time of transfer, it

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

Article 94 (Scope of Transfer Income Tax of Gu)

Article 96 (Value of Transfer)

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of capital gains tax of KRW 8,92,215 against the plaintiff on December 1, 2006 (the defendant seems to have been written in writing on December 14, 2006) shall be revoked.

(Plaintiffs have reduced their claims in the trial).

1. Details of the disposition;

The following facts may be acknowledged either in dispute between the parties or in combination with the whole purport of the pleadings in each entry in Gap evidence 1 through 5, Eul evidence 1, 2, 4, and 5-1, 2, Eul evidence 3-1 through 3.

가. 원고는 1990. 9. 5. 부산 ◯◯구 ◯◯동 236-8 ◯◯아파트 16통 202호(이하 '종 전 아파트'라 한다)에 관한 소유권이전등기를 마치고 이를 보유하던 중, 종전 아파트 단지의 주택재건축사업을 위한 구서◯◯아파트재건축조합(이하 '재건축조합'이라고 한 다)이 설립되자, 그 조합원이 되어 재건축조합에 종전 아파트를 신탁하고 2001. 6. 22. 소유권이전등기를 마친 다음, 재건축조합이 2002. 6. 21. 사업시행인가를 받은 이후 종 전 아파트가 사업시행으로 철거됨에 따라, 2002. 7. 31. 종전 아파트에 관한 멸실등기를 마쳤다.

나. 원고는 2003. 9. 26. 재건축조합 및 시공회사와, 재건축사업의 시행으로 신축되는 부산 ◯◯구 ◯◯동 1051 ◯◯캐슬골드 102동 1401호(이하 '이 사건 아파트'라고 한다)를 조합원 부담금 90,070,000원에 분양받기로 하는 계약을 체결한 다음, 그 부담금올 모두 납부하여 2006. 5. 8. 이 사건 아파트에 관한 소유권보존등기를 마치는 한편, 같은 날 주식회사 국민은행에 채권최고액 2억 4,700만 원으로 된 근저당권설정등기를 마 쳐 주였다.

C. After that, on May 2, 2006, the Plaintiff donated the apartment of this case to Lee Sung-sung, who is an son of May 22, 2006, by having him assume the obligation of the secured debt of KRW 190 million with respect to the apartment of this case, and completed the registration of transfer of ownership on the ground of this on May 23, 2006.

D. On July 19, 2006, the Plaintiff filed a preliminary return on the tax base of capital gains tax based on the actual transaction value on the ground that he/she is a housing owner, and filed a return on the tax base of capital gains tax on the ground that he/she is a single household, and calculated the acquisition value as KRW 190 million by calculating the acquisition value as KRW 237,010,491, and reported the gains from transfer as KRW 47,010,491, but filed a return on the gains from transfer as KRW 206,260,000, and filed a return on the gains from transfer as KRW 16,260,000.

E. As to this, on the ground that the actual transaction value at the time of acquiring apartment units by books or other documentary evidence could not be recognized or commercialized, the transfer margin on the part to be considered as transfer in case of onerous donation of apartment units in this case shall be calculated as KRW 76,785,340, and the transfer margin on the ground that the original amount of transfer income tax for the plaintiff in 2006 was corrected as KRW 9,337,420, and reduced as KRW 1144, and Article 114 (5) of the former Income Tax Act (amended by Act No. 8144, Dec. 306; hereinafter the same shall apply) and Article 176-2 (2) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890, Feb. 28, 2007; hereinafter the same shall apply) cannot be acknowledged as transfer margin on the remaining portion in case of onerous donation of apartment units in this case, 209, 30194,5197

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the following grounds.

(1) Since the Plaintiff purchased the apartment of this case from the reconstruction association in lots of KRW 309,390,000, the purchase price is KRW 309,390,000, and the value of the apartment of this case is also KRW 19,000,000,000, and as the Plaintiff donated the apartment of this case at the expense of acquiring the amount of KRW 19,000,000,000,000,000,000,000,000,000,00

Therefore, the transfer margin due to the onerous donation of apartment in this case should be calculated based on the above acquisition value and transfer value, and even according to Article 166(2) and (3) of the former Enforcement Decree of the Income Tax Act, the price determined by the management and disposal plan shall be considered as the acquisition value.

However, the disposition of this case was unlawful since it calculated the transfer margin from the onerous donation of the apartment of this case pursuant to Article 166(5) of the former Enforcement Decree of the Income Tax Act.

(2) In calculating the gift tax due to the onerous donation of the apartment of this case, the tax amount was calculated on the basis of the above parcelling-out price. In calculating the transfer income tax, setting the acquisition value by ancillary means is in violation of the principle of equity.

B. Relevant statutes

Article 94 (Scope of Transfer Income Tax of Gu)

Article 96 (Value of Transfer)

C. Determination

(1) Determination on the first argument

(A) Article 96(1) of the former Income Tax Act provides for the principle of the actual market price at the time of calculating the transfer value, and Article 96(2) provides for the exception of the standard market price applicable only to the portion transferred until December 31, 2006, and provides for the same exception in each subparagraph. In addition, Article 114(5) of the same Act provides for the principle of the actual market price at the time of transfer or acquisition of the relevant asset in cases where the transfer value or acquisition value is based on the actual market price, and where it is impossible to recognize or confirm the actual market price at the time of transfer or acquisition of the relevant asset by books or other documentary evidence, the transfer value or acquisition value may be determined or corrected by the estimated market price, etc. (referring to the actual transaction price, purchase price, sale price or appraisal price converted by the method as determined by the Presidential Decree) and the standard market price at the time of transfer in calculating the transfer margin. In addition, Article 100 of the same Act provides for the principle of the actual market price (including the sale price, sale price, appraisal price, and appraisal price).

In addition, with respect to the calculation of gains on transfer of onerous donation, the latter part of Article 88(1) of the former Income Tax Act provides that "where a donee takes over any obligation of a donor in case of onerous donation, the part equivalent to the amount of such obligation in the donation amount shall be deemed to have been actually transferred for price." Article 159 of the former Enforcement Decree of the Income Tax Act provides that "The acquisition value and transfer value in the calculation of gains on transfer of the portion to be deemed a transfer in case of onerous donation under the latter part of Article 8(1) of the Act, shall be the value calculated by multiplying the value of the relevant property under Articles 96 and 97(1)1 of the Act by the ratio of the portion equivalent to the amount of obligation in the donation amount

(B) According to the facts acknowledged earlier, the Plaintiff constitutes a case where a household with two or more houses owned as a single household, as prescribed by Article 162-2(5) of the former Enforcement Decree of the Income Tax Act, transfers a house, and thus, the transfer value for calculating gains from the transfer of the portion deemed a transfer in the instant apartment house’s onerous donation shall be based on the actual transaction value pursuant to Article 96(1) and (2)9 of the former Income Tax Act.

However, the actual transaction price, which is the basis for calculating gains on transfer, is not a general market price that reflects the objective exchange value, but a real transaction price refers to the amount actually agreed for benefits in itself or at the time of transaction. In the case of onerous donation in which a donee takes over a donor’s obligation, the amount of such obligation cannot be deemed as a transaction price corresponding to the part to be deemed a transfer of the given property as a whole or donated property (see Supreme Court Decision 2006Du7171, Apr. 26, 2007).

Therefore, since the actual transfer value of the part to be deemed a transfer cannot be deemed as 190 million won for the acquisition debt amount, the transfer margin calculation is based on the case where it is impossible to recognize or confirm the actual transaction value at the time of transfer of the assets concerned, and the calculation of transfer margin is subject to the method of estimation investigation stipulated in Article 114(5) of the former Income Tax Act. Since there is no evidence to know the transaction example, appraisal value, conversion value, etc. of the apartment of this case, the transfer value of the part to be deemed a transfer in the onerous donation of this case is bound to be based on the standard market price, and as long as the transfer value is based on the standard market price, the acquisition value shall be based on the same principle as provided in Article 100(1) of the former Income Tax Act.

However, the method of calculating transfer margin under the standard market price is specifically stipulated in Article 166(5) of the former Income Tax Act in the case of transferring the light land attached to a building acquired by the implementation of a housing reconstruction project, such as the apartment of this case. Thus, the disposition of this case is legitimate in calculating transfer margin of the part deemed both roads in the case of onerous donation of the apartment of this case (Article 166(2) and (3) of the same Act applies to the case where a member of the housing reconstruction association transfers the status of being selected as an occupant, and it cannot be applied to the case where a member of the housing reconstruction association transfers

(C) Therefore, the plaintiff's first argument is without merit.

(2) Judgment on the second argument

Since the transfer income tax and gift tax due to the onerous donation of apartment in this case are completely different in accordance with the legislative intent and provisions of each applicable law (the part to be considered as transfer and the remaining part), and the taxation requirements are entirely different, it cannot be deemed as a violation of the principle of equity on the ground that the method and basis of calculating the taxation standards of each of the above taxes are not the same.

Therefore, the plaintiff's second argument is without merit.

Results

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. However, the judgment of the court of first instance is just in its conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.