Cho Jae-2018-west-0477 ( October 11, 2018)

Whether taxation by standard market price is appropriate

Article 100 (3) of the Income Tax Act takes the form of the language and text itself, but it is reasonable to interpret it as a presumption provision in the system of the Income Tax Act on transfer. Therefore, the disposition of this case where capital gains tax is imposed by calculating the calculated tax according to the standard market

Article 100 of the former Income Tax Act shall be calculated on gains from transfer.

Seoul Administrative Court-2019-Gu -50406 revocation of disposition of imposing capital gains tax.

AA

s. Head of the tax office

on October 2019 03

1. The Defendant’s imposition of capital gains tax of KRW 154,392,90 (including additional tax) accrued to the Plaintiff on December 1, 2017 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. On June 30, 2016, the Plaintiff entered into a contract to collectively transfer the value of 2,830,000,000 square meters of a single house (hereinafter referred to as “second real estate”) and 102 square meters of a O-dong O-dong O-dong O-O-O-O-O-O-O-O-O-O-O (hereinafter referred to as “one real estate”) and the total area of 88.3 square meters of a single house on the same O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O

B. The instant sales contract is written in the indication column of real estate: (a) one parcel, other than the OO-dong O-dong, the land area of 267 square meters, and the housing area of 88.33 square meters; (b) the sale price is written in KRW 2,830,00,000, and the real estate is not written separately; and (c) the basis for calculating per unit area is not stated in the item column of the special agreement, but the O-dong O-dong O-dong O-dong (165 square meters) among the sold goods is written in the item column of the special agreement.

다. 원고는 2016. 10. 14. 제1부동산에 대하여 양도가액을 평당 3,500만 원으로 계산하여 양도가액 1,750,000,000원(165㎡ ÷ 3.3㎡ × 3,500만 원)을 기초로 산정한 양도소득세 368,645,480원의 예정신고를 하고 2016. 11. 28. 및 2017. 1. 24. 두 차례에 걸쳐 이를 납부하였다. 원고는 2016. 11. 14. 제2부동산에 대하여 양도가액 1,080,000,000원 {(2,830,000,000원 - 1,750,000,000원)으로 계산한 금액과 같고, 평당 3,500만 원으로 계산한 1,081,818,181원(102㎡ ÷ 3.3㎡ × 3,500만 원, 소수점 이하 버림)에 근사(近似)한 금액이다}을 기초로 1세대 1주택에 관한 특례규정을 적용하여 산정한 양도소득세 2,486,220원의 예정신고를 하고 2016. 11. 28. 이를 납부하였다.

D. On December 1, 2017, the Defendant: (a) calculated the transfer value of the first real estate in accordance with the standard market price at the time of transfer pursuant to Article 100(2) of the former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016; hereinafter the same) by calculating the transfer value of the second real estate as KRW 2,240,96,70; and (b) calculated the transfer value of the second real estate as KRW 589,03,230; and (c) additionally imposed capital gains tax of KRW 154,392,90 (including additional tax) on the basis of such calculated transfer value.

E. The Plaintiff filed the instant lawsuit following the pre-trial procedure by the Tax Tribunal.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4, 10 evidence, Eul evidence 1 to 6 (including provisional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

The Plaintiff, at the time of the instant sales contract, agreed on the value of the first and second real estate as KRW 35 million per square year between the buyer and the buyer, and Article 100(3) of the Income Tax Act, unlike the language and text, purports to the purport that the value according to the above agreement, which is the actual transaction value, should be deemed as the transfer value of the first and second real estate.

On the other hand, the defendant asserts that the plaintiff and the purchaser agreed to sell the real estate 1 and 2 at KRW 35 million each average, as alleged by the plaintiff, and that even if the plaintiff and the purchaser agreed so, the transfer value of the real estate 2 is different from the value calculated in accordance with Article 100 (2) of the Income Tax Act in the case of the transfer value of the real estate 30/100 or more, so the classification of the value is unclear in accordance with Article 100 (3) of the Income Tax Act. Thus, the defendant asserts that the transfer value of the real estate 1 and 2 should

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Article 100(3) of the former Income Tax Act

According to Article 100(2) of the former Income Tax Act, Article 166(6) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 28627, Feb. 9, 2018; hereinafter the same) and Article 64 subparag. 1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 29535, Feb. 12, 2019; hereinafter the same), where land, buildings, etc. are transferred along with each other and the transfer value is calculated based on the actual transaction price, and where the distinction between the value of the land, buildings, etc. is unclear, it shall be calculated in proportion to the value calculated according to the standard market price, etc. at the time of the transfer. In this context, in light of the purport of preventing tax avoidance by arbitrary classification of the value of each asset, it shall be interpreted to include not only the transfer of the land, buildings, etc. without distinction, but also the case where it can not be deemed a genuine agreement between the parties, but also a reasonable classification of value.

Article 100(3) of the former Income Tax Act provides that “If the value of land and buildings are differentiated by 30/10 or more of the value calculated in accordance with the above provision as above, the value of the land and buildings shall be deemed to be the time when the value of the land and buildings is unclear.” However, if such distinction is interpreted as a provision which is not allowed, the value classification between the parties shall be deemed to fall under the requirements of the above provision, but it does not constitute the result of reasonable determination of the value between the parties in accordance with the transaction practice, and thus, if such distinction is not permitted, it goes against the system of the Income Tax Act, which provides that the transfer value shall be calculated based on the actual transaction price in principle, and thereby, imposes an excessive tax by evaluating the income higher than the gains from actual transfer. Accordingly, Article 100(3) of the former Income Tax Act provides that if such distinction is unclear, the taxpayer shall be presumed to be the case where the value is presumed to be the case where the taxpayer satisfies the requirements of the above provision, but if such distinction is a reasonable presumption by the parties in accordance with the transaction practice.

B. Whether the classification of the value of the first and second real estate in this case is unclear

㈎ 이 사건의 경우, 원고는 제1부동산 1,750,000,000원, 제2부동산 1,080,000,000원으로 구분하여 양도가액을 신고하였고, 기준시가에 따라 안분한 가액이 제1부동산 2,240,966,770원, 제2부동산 589,033,230원인바, 원고가 신고한 가액은 안분계산한 가액과 제1부동산 28.05%, 제2부동산 45.45%의 차이를 보이고 있다. 따라서 구 소득세법 제100조 제3항, 제2항에 따라 원고가 신고한 제1, 2부동산 가액은 가액 구분이 불분명한 경우에 해당하는 것으로 일응 추정된다.

㈏ 그러나 갑 제5 내지 11호증, 을 제8, 9호증(가지번호 포함)의 각 기재 및 변론 전체의 취지를 종합하여 인정되는 다음과 같은 사실관계 및 제반 사정에 비추어 보면, 원고와 매수인은 제1, 2부동산의 가액을 평당 3,500만 원으로 동일하게 평가하여 이 사건 매매계약을 체결하였고, 그 가액결정은 통상의 거래관행에 따른 합리적인 의사합치의 결과로서 이 사건 매매는 제1, 2부동산의 가액 구분이 불분명한 경우에 해당하지 아니하다고 판단된다.

① The first and second real estate are adjoining land located within the reconstruction zone promoted by the purchaser. The first and second real estate is located in the village, and the Plaintiff resided in the housing of the second real estate and used the first real estate as the second real estate site. Although the Plaintiff did not separate the purchase price of the first and the second real estate in the sales contract of this case and stated only the total amount. However, according to the CCC’s testimony as a representative of the reconstruction association which is the president of the reconstruction association which promotes the reconstruction project at present, the Plaintiff and the purchaser may recognize the fact that the purchase price was determined by evaluating the value of the first and the second real estate as the purchase price of the second real estate at KRW 35 million per fair, [the value of the first and second real estate is calculated as KRW 35 million per square year, the sale price of the second real estate is calculated as KRW 2,831,818,181, 200,000, KRW 21,818,18181).

② Since the purchaser promoted re-building on the first and second real estate unit, the purchaser assessed the value of the housing without considering at all the value of the housing site in purchasing the first and second real estate. Moreover, the purchaser divided the class of the land in the project zone based on road accessibility and consulted the value of the land in consideration of transaction cases, etc. based on road accessibility, and if the first and second real estate are combined, it does not seem to have any difference in road accessibility. In addition, the Plaintiff was at the state of obtaining a building permit to remove the second real estate around June 27, 2016 and construct a new building on the ground by combining both sites. The method of calculating the calculated calculation in this case’s disposal would be in proportion to the value of the second real estate, which goes against the purchaser’s determination method.

③ On June 30, 2016, the purchaser: (a) purchased and transferred another house owned by the Plaintiff, located outside the relevant rebuilding project zone, located outside of the OOdong OO; and (b) thereby allowing the application of the special provisions on one house for one household in the transfer of the second real estate. In addition, in light of the Plaintiff’s above construction permit was in close vicinity to the instant sales contract, it is deemed that it was derived from the intent of inducing the purchaser to reach a favorable agreement with the purchaser on the sales price of the second real estate. However, even if the Plaintiff sold the first and second real estate at a higher price and lowers the transfer income tax amount imposed on the transfer of the second real estate, it is difficult to deem that the Plaintiff arbitrarily divided the value of the first and second real estate and caused tax avoidance.

【Court Decision】

Therefore, the transfer income tax shall be calculated by calculating the transfer value of 1 and 2 real estate according to the standard market price.

The disposition of this case, which was imposed, should be revoked as it is illegal.

3. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.