Review Transfer 2010-0073 (28. 2010.05)

In the case of exchange, the actual acquisition value of real estate;

Where the party to the exchange arbitrarily evaluates the value of the subject matter of exchange without undergoing the market price appraisal, etc., and enters the exchange difference in the exchange contract, or in the case of simple exchange without any difference in the exchange difference, the actual acquisition value shall not be confirmed. Therefore, the acquisition value shall be calculated by applying the transaction example, appraisal value or conversion value.

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

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1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 19,051,930 for the Plaintiff on November 2, 2009 shall be revoked.

쇠鹬 쇠鹬 3000 쇠鹬 3000

1. Details of disposition;

A. On November 16, 2004, the Plaintiff newly constructed a building with a total floor area of 254.21 square meters (hereinafter referred to as the “instant building”) after acquiring the instant land from 248-16, 154.4 square meters (hereinafter referred to as “instant land”) in ABB-Gu, AB-Gu, 2004.

B. On March 16, 2007, the Plaintiff sold 330,000,000 won (land 151,468,572 won + building 178,531,428 won) to 2 persons, including Korea-China, etc.

C. On May 1, 2007, the Plaintiff filed a return on capital gains tax calculated with the transfer value of the instant real estate as KRW 330,000,000, and the acquisition value as KRW 318,521,223 (land 183,00,000 + the new building value as KRW 135,521,223).

D. The Defendant confirmed that the Plaintiff acquired the instant land and 248-14 square meters (hereinafter “248-14 square meters”) of the same 248-14 square meters and 172 square meters of the same 248-14 (hereinafter “248-14 square meters”) as an exchange (hereinafter “exchange contract of this case”) with GG-si H 55 square meters and 56 14,188 square meters (hereinafter “land subject to exchange”) owned by the Plaintiff, and that the acquisition value of the instant land acquired by the Plaintiff through the exchange transaction and the acquisition value of the instant building are unclear, the Defendant notified the Plaintiff of the disposition of the acquisition value of the instant real estate of 291,298,67 (land 132,246,466 won + 159,052,200 won + 100 won in proportional distribution + 1 won in proportion to distribution) and the disposition of this case reverted to the Plaintiff on November 29, 2009.

E. As to the instant disposition, the Plaintiff filed an objection on January 26, 2010, but was dismissed. On March 5, 2010, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service, but was dismissed on May 28, 2010.

[Ground of recognition] The descriptions of Gap evidence Nos. 1, 2, 15, Eul evidence Nos. 1 and 2 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff exchanged the land in this case and 248-14 with the land in this case and the land in this case. The land in this case and the land in 248-14 were assessed as KRW 450,000 in total, and among them, the value of the land in this case is clear that it is KRW 183,00,000 in terms of the actual acquisition value of the land in this case, and thus, the disposition in this case for which the transfer income tax was imposed by calculating the acquisition value by the conversion value is unlawful.

B. Key statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On July 30, 2004, the Plaintiff entered into the instant exchange contract with Kim P, the nominal owner of the instant land and 248-14, on behalf of Y, on which the Plaintiff did not appraise the market price regarding the value of the land to be exchanged at the time of exchange, and even in the exchange contract dated 30, 2004, the value of the instant land and 248-14 is not indicated.

2) On October 15, 2004, where the transaction value was not indicated by the Plaintiff, WW, a husband of the Y’s husband, the Plaintiff affixed a seal on October 15, 2004, demanding the Plaintiff to affix a seal on the real estate sales contract and the certificate of transaction. However, the Plaintiff voluntarily stated the transaction value of the instant land in the real estate sales contract as KRW 183,00,000

3) The Y reported that the Plaintiff sold the instant land in KRW 88,000,000 to the tax office.

4) As to the land to be exchanged on June 28, 2006, the Plaintiff completed the registration of transfer of ownership in the name of the least Z.

5) On May 1, 2007, the Plaintiff reported the acquisition value of the instant building to the tax office on May 1, 2007 at a standard market price, which serves as the tax base for acquisition tax, etc., and did not submit documents verifying the actual cost incurred in the construction of the instant building

[Ground of recognition] The evidence, Gap evidence Nos. 4, 5, 6, 8, 9, 16, Eul evidence No. 3 (including each number), the purport of the whole pleadings

D. Determination

(i)Paragraph 1 of Article 97 of the Income Tax Act (not indicating the year of personal modification; hereinafter the same shall apply);

According to Articles 100(1) and 114 of this Act and Article 176-2 of the Enforcement Decree of the Income Tax Act, in cases of transfer of land, buildings, etc., in principle, the amount of actual transaction value shall be calculated based on the actual transaction value in calculating the transfer margin. The transfer value shall be calculated based on the transaction example value, appraisal value, conversion value, etc. in cases where the actual transaction value is verified, but the transfer

Furthermore, the actual acquisition value of the pertinent asset, which serves as the basis for calculating the amount of capital gains tax, refers to the value that is paid for the acquisition of assets at the time of the transaction and that is objectively recognized by the sales contract or other documentary evidence. Thus, in the case of the exchange of assets, it is a value exchange based on the monetary value of the object, which is especially a value exchange, which is a standard for the market value and entails the settlement procedure for the difference in the appraisal value, the actual acquisition value can be confirmed if it is accompanied by the appraisal procedure for the difference in the appraisal value. However, in the case of a simple exchange of assets not so, there is a mutual agreement between the parties that the object of exchange be exchanged at the market price, and it is impossible to confirm the actual acquisition value due to the lack of specific appraised value (see, e.g., Supreme Court Decision

Therefore, in case where the exchange party arbitrarily evaluates the value of the subject matter of exchange without going through the market price appraisal, and enters the exchange difference in the exchange contract, or in case of simple exchange without any difference in the exchange difference, the actual acquisition value cannot be confirmed. Therefore, the acquisition value should be calculated by applying the method of the estimation investigation by applying the method of transaction example, appraisal value or conversion value.

2) In the instant case, while acquiring the instant land and the land 248-14 by an exchange contract, the Plaintiff arbitrarily assessed the value of KRW 450,00,000 without going through the market price appraisal, etc., and filed a transfer income tax on the basis of KRW 183,00,000, which was arbitrarily divided by lots, as the acquisition price of the instant land, but it is difficult to recognize the said value as the actual acquisition price of the instant land.

Ultimately, the acquisition value of the instant land ought to be calculated by applying the method of estimated assessment according to the order of business example, appraisal value, and conversion value. However, since the business example and appraisal value of the instant land are not confirmed, the acquisition value of KRW 132,246,466, which is the value converted by the method prescribed by the Presidential Decree based on the actual transfer value

3) In addition, the Plaintiff reported the acquisition value of the instant building at a standard market price which serves as the tax base for acquisition tax, etc., and did not submit evidence to prove the actual cost incurred in the construction of the instant building. Therefore, it is difficult to recognize the said value as the actual acquisition value of the instant building.

Ultimately, the acquisition value of the building of this case shall be calculated by applying the method of estimated assessment according to the order of transaction example, appraisal value, and conversion value. Since the transaction example and appraisal value of the building of this case are not confirmed, the acquisition value of 159,052,200 won, which is the value converted by the method prescribed by the Presidential Decree, based on the actual transfer value

4) Therefore, the instant disposition imposed by the Defendant by applying the conversion value under the same premise is lawful.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.