Seoul Administrative Court 2009Gudan969 (No. 23, 2009)

Seocho 208west 2417 ( October 22, 2008)

The propriety of a disposition imposing a tax on the basis of the standard market price because the transfer value is unclear.

Since the overall transfer value of real estate is confirmed, but in the case of land and buildings, it seems to be stated in the sales contract without any agreement, and because the value of the building is more than six times the standard market value of the building and it is unclear that the transfer value is divided and taxed in proportion to the standard market value, the disposition is legitimate.

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

Park ○

Head of Seodaemun Tax Office

1.The decision of the first instance shall be revoked.

2. The plaintiff's claim is dismissed.

3. The total costs of the litigation shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 6,262,70 for the Plaintiff on April 1, 2008 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Circumstances of dispositions;

A. On May 21, 1986, the Plaintiff acquired 167-10 square meters and 270.4 square meters (hereinafter “the instant land”). On July 14, 1995, the Plaintiff newly constructed the instant land and its neighboring residential facilities and housing buildings of 167-11 square meters (156.60 square meters of land, 156.60 square meters of land, 156.60 square meters of land, 167.40 square meters of land, 167.98 square meters of land, and the housing portion is 286.62 square meters of land, 286.70 square meters of land, and 20.70 square meters of land, and hereinafter “the instant real estate” together with the said land) with Gangwon-do.

B. On December 28, 2005, the Plaintiff entered into a sales contract to transfer the instant real estate in KRW 3.75 billion to △△△△△ (hereinafter referred to as “△△△△”) on the part of the Plaintiff, but, on the other hand, △△△△ District Co., Ltd. (hereinafter referred to as “△△△△ District”) decided to succeed to the purchaser status pursuant to the instant sales contract (the Plaintiff and △△△ District were prepared a real estate sales contract between the Plaintiff and the Plaintiff on December 28, 2005). By December 31, 2007, the Plaintiff transferred the instant real estate by receiving full payment of the remaining purchase price of the instant real estate from △△△△△ District.

C. On January 31, 2007, when the Plaintiff filed a tax base return on capital gains from the transfer of the instant real estate to the Defendant, the transfer value is 3.75 billion won in total (2.75 billion won in the transfer value of the instant land + 1.00 billion won in the transfer value of the instant building). The acquisition value is 1,823,664,946 in the conversion value calculated based on the above transfer value (1,145,154,250 in the acquisition value of the instant land + 678,510,696 in the acquisition value of the instant building + 678,598, which is calculated by applying the long-term possession special deduction rate of 30% in the acquisition value of the instant building) and thus, the amount of capital gains tax calculated by applying the special deduction rate of 30 billion won in total to the Defendant on August 17, 2007, was refunded to 397,29757,29700 and 297.

D. However, it is reasonable to apply the long-term holding special deduction rate to 45% on April 1, 2008 by the Plaintiff holding one house for 15 years or more for the Plaintiff as one household and applying the long-term holding special deduction rate to it. However, it is unclear that the ground for the Plaintiff to divide the transfer value of the instant land and the building out of the total transfer value of the instant land and the building, which was based on the calculation of transfer income tax at the time of voluntary report and payment, is unclear. Thus, in cases where the value of the instant land and the building is calculated by dividing it according to the standard market price pursuant to Article 116(6) of the Enforcement Decree of the Income Tax Act, the acquisition value is the total of KRW 1,692,82,750 (the acquisition value of the instant land 1,268,538,446 won + the acquisition value of the instant building 424,284,304 won). Accordingly, when calculating transfer income tax based on this, the transfer income tax amount is calculated by deducting the total KRW 427,2222265,69.

[Ground of recognition] Facts without a dispute, Gap 1, 2 (including a paper number; hereinafter the same shall apply), Eul 1,2,3,9,11, the purport of the whole pleadings and arguments

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

At the time of the sales contract for the instant real estate, the Plaintiff made a verbal agreement with the buyer to have the value of the instant building KRW 1 billion out of the total purchase price of KRW 3.75 billion, and thereafter, even if the value of the instant building was separately stated in the sales contract, the instant disposition, which was deemed unlawful in cases where the distinction between the value of the instant land and the building is unclear, even though the value of the instant building was separately stated in the sales contract.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) In light of the purport of the entire pleadings in the statements in Eul evidence Nos. 7 through 14, △△-gu representative director of △△-gu stated to the effect that △△-do was in currency with the employees of the Seodaemun-gu Office on February 27, 2008, and that "no separate determination was made" was made in currency with the employees of the Seodaemun-gu Office on January 20, 2009, and that "the value of the building was otherwise determined". Unlike the approval approval certificate contract (No. 8) submitted by △△-gu to the ○ Office on the real estate of this case, the value column of the building of this case was vacant, unlike the real estate sales contract (No. 3 and No. 4 evidence) submitted by the Plaintiff, △△-gu, which was trying to purchase the real estate of this case from the original Plaintiff, and △△-gu, which succeeded to the sales contract of this case, was to remove the building of this case after purchasing the real estate of this case, and to newly build the main complex.

(2)In light of the following circumstances revealed by the facts of the recognition as above and each of the aforementioned evidence, the statement in Gap evidence No. 7, which corresponds to the plaintiff's argument that at the time of the transfer of the instant real estate, the transfer value of the instant building was an oral agreement of KRW 1 billion separate from the land price at the time of the transfer of the instant real estate between the purchaser and the purchaser, and the testimony by the witness KimCC of the first instance court

(1) The stamp contract prepared by the parties to the transaction and approved by the head of the Si/Gun, etc. shall be presumed to have been prepared in accordance with the sales contract between the parties (see Supreme Court Decision 93Nu2353, Sept. 9, 193). The stamp contract submitted by the plaintiff and the Gangseo-gu to the competent authorities after purchasing the building of this case from the plaintiff and the Gangwon-A and submitting it to the competent authorities is not stated in the value of the

② The Plaintiff asserts to the effect that the market price of the instant land is 5,454,400/m2, and therefore, it is reasonable to determine the price of the instant building as one billion won. However, the price of the instant building per m2 is merely a compensation paid while the said land was expropriated in neighboring land by GangwonA, and thus, it is inappropriate to regard it as the basis for estimating the sale price under the agreement between the parties.

③ Although the Plaintiff calculated the sales value of the building at the time of the sales contract for the instant real estate, as to the total amount of the deposit money for the instant building, there is no ground to calculate the sales value of the said building by such method, and thus, the said assertion cannot be deemed as an objective and reasonable sales value.

④ In addition, the Plaintiff also needs to examine whether the sales price of the instant building is appropriate, and the tax issues, such as capital gains tax, may vary depending on the value of the building. Thus, the Plaintiff asserts that the sales price of the building was a disturbance in the sales contract in order to keep room for changing the sales price of the building until the remainder of the transaction is completed. However, even according to the Plaintiff’s assertion itself, the Plaintiff’s assertion itself cannot be deemed to have clearly determined the price of the building between the purchaser and the purchaser, and the Plaintiff appears to have written the sales price of the building in the said sales contract without any agreement with △△-gu for convenience of tax burden at the time of

(5) In ordinary cases, if a building on the ground is purchased together with another building in order to use the site of the building, the value of the building scheduled to be removed in the future, from among several occasions, is not important matters. In this case, if the value of the building in this case is one billion won or more, △△-gu will purchase the building at a price higher than six times the standard market price of the building in this case.

(3)The assignment of the instant real property to the end of the contract constitutes a transfer of the instant real property along with the land and the building, and the distinction between its value is unclear. Accordingly, the Defendant’s instant disposition premised on this premise is lawful. Accordingly, the Defendant’s aforementioned assertion on a different premise is without merit.

3.In conclusion

Therefore, the plaintiff's claim of this case seeking the cancellation of the disposition of this case shall be dismissed as it is without merit, but the judgment of the court of first instance has different conclusions, so it is unfair to cancel it and dismiss the plaintiff's claim as per Disposition.