Seocho 2012west 1818 (2013.08)

It is difficult to see that the price of the land and building as classified in the sales contract is unreasonable classification.

Since the value of land and buildings is clearly clearly divided under the sales contract, it is difficult to readily conclude that the value classification is not reasonable in light of the trend of decline in the standard market price of buildings without any proof that such division is not genuine agreement between parties to a transaction or intent to evade tax, and thus, it is unlawful to divide the value of land and buildings by deeming that the classification is unclear.

2012Gudan2617 Revocation of Disposition of Imposing capital gains tax

Park AA

Samsung Head of Samsung Tax Office

April 17, 2013

May 8, 2013

1. The Defendant’s imposition of capital gains tax of KRW 000 on February 1, 2012 against the Plaintiff on February 1, 2012 shall be revoked.

2. The costs of lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

"가. 원고는 서울 강남구 OOO 0000 소재 토지 및 지상건물(이하 이를 이 사건 토지이 사건 건물'이라 한다)을 1982. 12. 30. 매매로 취득하여 보유하다가， 2009. 9 11. 서BB 및 이CC(이하 양수인들이라 한다)에게 0000원에 매도(아하 '이 사건 매매계약'이라 한다)하였다.",나. 이 사건 토지는 면적이 335.7㎡이고， 이 사건 건물은 주택과 근린생활시설이 병존하는 겸용주택인데 지하 1층 근린생활시설 151.41㎡， 1층 근린생활시설 165.59㎡' 2 층 근린생활시설 165.59㎡， 3층 주택 154.78㎡로 이루어져 있다.

C. In concluding the instant sales contract with the transferee, the Plaintiff: (a) sold the value of the instant building to KRW 000; and (b) sold the instant land to KRW 000; and (c) divided the sale value of the building according to the proportion of the standard market price of neighborhood living facilities and housing; and (b) divided the transfer value according to the size of neighborhood living facilities and housing; and (c) divided the transfer value according to the proportion of the land annexed to the land annexed to neighborhood living facilities and housing; and (d) reported the transfer income tax in proportion to

D. The Defendant applied the standard market price of the part of neighborhood living facilities (including appurtenant land) and the part of housing (including appurtenant land) to KRW 000,000, the total transfer value of the instant land and building, while it constitutes a case where the classification of the value of the instant land and building is unclear, calculated the transfer value as follows, and notified the Plaintiff of the correction of KRW 000,000 for the transfer income tax reverted to the year 2009.

(1) Part below omitted:

E. On February 29, 2012, the Plaintiff appealed and filed an appeal with the Tax Tribunal on February 29, 2012, and was dismissed on June 27, 2012. In addition, the Plaintiff made a request for correction to the Defendant on July 19, 2012 due to the error in the determination of acquisition value at the time of the said additional correction, and the Defendant reduced KRW 000 from the original disposition on September 6, 2012 (hereinafter “instant disposition”).

[Reasons for Recognition] The facts without dispute, Gap evidence l through 8 (including natural disasters, hereinafter the same shall apply), Eul evidence 1 and 2, and the purport of the whole pleadings

2. The assertion and judgment

A. Summary of the plaintiff's assertion

The instant sales contract is clearly divided into the prices of land and buildings, and it does not fall under the cases where the distinction between the prices of land and buildings is unclear, and the area of land annexed to a combined house is divided into the areas attached to the housing and the areas attached to the neighborhood living facilities pursuant to Article 154 (4) of the Enforcement Decree of the Income Tax Act, and thus, it is reasonable to report the transfer value by dividing the values accordingly. However, the Defendant, without any basis, was calculated by calculating the total transfer value according to the publicly notified prices of the housing portion and the

(b) Fact of recognition;

(1) The instant sales contract (A No. 1) states that the total purchase price shall be KRW 000, and the down payment shall be KRW 000,000 at the time of the contract, and KRW 000 shall be paid in September 14, 2009, while KRW 000 at the time of the contract, shall be paid in December 10, 2009, the building value shall be set at KRW 000, and the land value shall be set at KRW 000,000.

(2) The sum of the standard market prices of only the portion of the building (house and neighborhood living facilities) calculated according to the individual housing price and the standard market price publicly notified on the date of the instant sales contract is KRW 000 (In addition, the standard market prices of the building of this case in 2012 are KRW 000, and the standard market prices of the year 2013 are KRW 000).

(3) On the first floor and the first floor of the instant building, stores are located, and the second floor were one member directly operated by the Plaintiff, and the third floor was used as housing.

[Grounds for recognition] The descriptions of Gap, 8, 9, and 10, and the whole purport of the pleading

C. Relevant statutes

Attached Form is as shown in the attached Form.

D. Determination

(1) According to Article 100 (2) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009), Article 166 (6) of the Enforcement Decree of the Income Tax Act, and the proviso of Article 48-2 (4) 1 of the Enforcement Decree of the Value-Added Tax Act, and Article 48-2 (4) of the Enforcement Decree of the Value-Added Tax Act, where the transfer price is calculated based on the actual transaction price, and where the classification of the value of land and buildings is unclear, the transfer price shall be calculated in proportion to the value calculated according to the standard market price as of the date of the transfer contract, and even if the value of land and buildings is clearly distinguishable from the value of the land and buildings without distinction, it shall be interpreted that the transfer price is not true between the parties, or it shall not be deemed that there is a reasonable distinction between the parties other than the intent to evade taxes by substantially deviating from the ordinary transaction practices.

In addition, the instant provision provides a general and reasonable method to calculate the common acquisition value or transfer value, and in light of its content and purport, it should be applied not only between taxable assets, but also between taxable assets and non-taxable assets (see Supreme Court Decision 2010Du21402, Jan. 26, 2012).

(2) On the basis of this point, we examine the instant case.

(A) First of all, in applying the calculated division provision of this case with respect to the transfer value of land and buildings, the premise that the distinction between the value of the land and buildings is unclear, and the burden of proof is borne by the Defendant, which is the disposition authority. However, the value of the land and buildings under the sales contract of this case is clearly divided into KRW 000 and that of the building00 under the contract, and whether the aforementioned classification of the value is not determined by the genuine agreement between the parties, or it is not deemed that it is a reasonable value, unless it is determined that it is not a rational one, unless it is proven that the agreement between the Plaintiff and the transferee is not genuine or that the transferee cooperates with the intention of tax avoidance, and there is no reason to conclude that the price of the building in this case is a reasonable value-added price, other than that of the building in this case, because it is unclear or unclear after the conclusion of the contract without any specific reason to conclude that the price of the building in this case is the value of the building in this case.

(B) Next, it is unclear that the Defendant is distinguished from the value of housing and neighborhood living facilities among the instant building. With respect to KRW 000, which is the total purchase price of the instant building, the housing and appurtenant land were calculated based on the individual housing price, and neighborhood living facilities and appurtenant land were calculated based on the standard market price (total of the standard market price of neighborhood living facilities and the publicly assessed individual land price of neighboring land) and calculated the transfer value of each building and the instant disposition

(1) Even if a building is divided into housing and neighborhood living facilities, and the applicable tax rate, deduction, and non-taxation requirements are different, so long as the value of housing and neighborhood living facilities is divided and the sale is not achieved, it shall be deemed reasonable to divide 00 won of the purchase price of the building according to the standard market price of housing and neighborhood living facilities (the plaintiff filed a report on capital gains tax in proportion to the value of 00 won, which is the sales price of the building, according to the standard market price of housing

② However, the Defendant calculated the transfer value of the building portion with respect to KRW 000,000, which is the total amount of the sales price of the building, rather than distributed proportionally according to the standard market price of each part of the building, (i) and (ii) applied the distribution standard for the total amount of the sales price of the building to the sales price of KRW 000,00, which is the total amount of the sales price of the building in this case (i.e.,, the transfer of the building portion is equivalent to KRW 000,000),

(3) In addition, as to the land annexed to the housing and neighborhood living facilities, the defendant considers that it falls under a case where the distinction between the value is unclear, the value of each annexed land based on the standard market price of each annexed land (in the case of the land annexed to the housing, the value of the land in the individual land price, and in the case of the land annexed to neighborhood living facilities), was divided in proportion to the value of each annexed land. However, under the premise that the transfer value of the land in this case is divided into 00 won, the transfer value is not divided in proportion to the value of the land annexed to the housing and the value of the land annexed to neighborhood living facilities, and as seen in the above, it is obvious that the value of the land in this case is divided into the total value of the land in this case

(4) Furthermore, Article 154 (4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010) provides that in calculating the area of land attached to one household with respect to the requirements for non-taxation on one house for one household, the entire land which is not the standard market price shall be subject to the ratio of the area occupied by a house and a building other than a house and a building other than a house, and Article 106 (2) 1 of the Local Tax Act shall be divided into land annexed to a house and a building according to the ratio of the area of a building used for both residential and non-residential purposes, and the same purport is to be divided into land annexed to a house and a building according to the ratio of the area of a building used for both residential and non-residential purposes, it is not deemed reasonable to divide the value of land according to the ratio of the area of the land annexed to the combined residential and non-residential building (i.e., the area of land annexed to the combined residential and non-residential building in proportion to the total area of the land shall be determined in each case.

(3) Ultimately, it is difficult to readily conclude that the price of the land and buildings stated as classified in the instant sales contract is a unreasonable distinction, and it is difficult to view that it is reasonable to divide the transfer price of all the land attached to the housing and neighborhood living facilities in proportion to the area of each land attached to the housing and neighborhood living facilities, and the instant disposition made on the premise that the land and buildings price in the instant sales contract lacks rationality and it is unclear.

3. Conclusion

If so, the plaintiff's claim of this case is reasonable, so it is decided as per Disposition.