Cho High-depth201Gu4866 (27 April 2012)

Proceeds from sale of machinery and apparatus shall not be deemed necessary expenses for the transfer of land or building.

It is legitimate to calculate the acquisition value of land and buildings in proportion to the auction appraisal amount, even if the land, buildings and machinery were acquired in a lump sum, and the machinery and apparatus were transferred separately, and the machinery and apparatus were incurred by the sale of the machinery and apparatus, not attached or attached to the land and building.

2012Guhap2797 Revocation of Disposition of Imposing capital gains tax

Anthrox

Head of Namgu Tax Office

November 2, 2012

November 28, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 000 for the year 2009 against the Plaintiff on September 1, 201 shall be revoked.

1. Details of the disposition;

A. On June 30, 2004, the Plaintiff awarded a bid on June 30, and on February 4, 2009, pursuant to Articles 4, 5, and 7 of the former Factory Mortgage Act (wholly amended by Act No. 9520, Mar. 25, 2009; hereinafter referred to as the "former Factory Mortgage Act"), the land listed in paragraph 1 and paragraph 2 of the attached Table 1, and the factory building (hereinafter referred to as the "land" or "the building of this case") and paragraph 3 of the same Table (hereinafter referred to as the "construction of this case"). The amount of the land appraised as of February 4, 200 in the above auction procedure to the EE appraisal corporation at KRW 10,00,000, and the land and equipment of this case at KRW 30,000,00,000, and KRW 30,000,00,000 (hereinafter referred to as "land and equipment of this case").

B. On December 30, 2009, the Plaintiff: (a) on the basis of the actual acquisition and actual transfer value of the land and building of this case, the Plaintiff calculated the acquisition value of the machinery and apparatus of this case as KRW 000,000, and the acquisition value (=the successful bid price of this case = KRW 000,000, + the appraised value of the land auction of this case + KRW 000,000, + the appraised value of the building of this case + the appraised value of the building of this case + KRW 000,000 + the acquisition tax + 0000,000 + the acquisition tax + the expense of the certified judicial scrivener for the sale of the housing bonds + the acquisition value of the machinery and apparatus of this case, other than the successful bid price of KRW 00,000, and the remainder of the appraised value of the machinery and apparatus of this case, calculated the acquisition value of the machinery and apparatus of this case as the total appraised value of KRW 300,000,00.

C. On September 6, 2011, the Defendant imposed and notified the Plaintiff of KRW 000 of the transfer income tax corresponding to the transfer value of the instant land and building on the grounds that the sales loss amount of the instant machinery and equipment does not fall under the necessary expenses deducted from the transfer value of the instant land and building (hereinafter “instant disposition”).

D. On November 7, 2011, the Plaintiff filed an appeal with the Tax Tribunal, which was dismissed on April 27, 2012.

[Based on Recognition] The non-contentious facts, Gap evidence 1 to Eul evidence 6, Gap evidence 9-1, 2, and Eul evidence 3, and the purport of the whole pleadings

2. The plaintiff's assertion is as follows.

A. The sales loss amount of the instant machinery and apparatus falls under the amount of capital expenditure under Article 97 (1) 2 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009), but it is illegal that the Defendant did not recognize it as necessary expenses.

B. On June 30, 2004, the Plaintiff acquired the instant land, buildings, and machinery and apparatus in a lump sum, and transferred the instant machinery and apparatus at KRW 000 on August 13, 2004, and the acquisition value of the instant land and structure at KRW 000,000, compared to the difference between the above KRW 00 and KRW 000, and the instant machinery and apparatus are not affiliated with or annexed to the instant land and structure, and even if there was a loss due to their sale as alleged by the Plaintiff, they do not constitute necessary expenses under Article 97 (1) 2 of the former Income Tax Act, and the Plaintiff’s assertion is without merit.

B. Judgment on the Plaintiff’s assertion No. 2.B.

(1) According to Article 100(2) of the former Income Tax Act, where the acquisition price is calculated based on the actual transaction price, and where the land and buildings are also acquired, they shall be separately entered, and where the distinction between the value of the land and the buildings is unclear, it shall be calculated in proportion to the value of the relevant assets under the conditions as prescribed by the President, taking into account the standard market price at the time of acquisition, etc. In cases where Article 166(6) of the former Enforcement Decree of the Income Tax Act and Article 48-2(4)2 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 22043, Feb. 18, 2010), and where the difference between the value of the land and the buildings is unclear, it shall be calculated in proportion to the value of the relevant assets if there is no standard market price at any one or all of the values of the land and the buildings, etc. In addition, it shall be calculated in proportion to the said amount of appraisal.

(2) The appraisal standard of the auction appraisal of this case (â………), and the auction appraisal value of this case was on February 4, 2004, five months before the plaintiff acquired the land, buildings and machinery of this case, and (2) the auction appraisal value of this case is similar to the appraisal value of the bank of this case (as of June 22, 2004), and at the two appraisal, about 40% of the appraisal value, and the part of the machinery and apparatus of this case was transferred at low price to Y, and ③ the plaintiff transferred the machinery and apparatus of this case to Y on August 18, 2004, which could have been done so for the purpose of leasing the land and building of this case to Y, and the transfer value of this case was not the plaintiff but the value of the machinery and apparatus of this case, and it is legitimate that the defendant calculated by dividing the acquisition value of the land of this case and building in proportion to the auction appraisal value of this case in accordance with Article 100 (2) of the former Income Tax Act.

5. Conclusion

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