The early appellate court 2014 Deputy 3768

Where a publicly announced individual land price is transferred immediately after the date it is announced, the publicly announced individual land price shall apply.

Even if the individual land price was immediately announced, the publicly announced individual land price will be applied to the transfer of the same day.

Articles 90, 94, and 96 of the Income Tax Act, Article 11 of the Public Notice of Values and Appraisal of Real Estate Act, Article 3 of the Enforcement Decree of the same Act, etc.

2015Guhap20894 Revocation of Disposition of Imposing capital gains tax

ParkCC

DD Head of the tax office

July 16, 2015

August 27, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 113, the capital gains tax for the year 201 X, the capital gains tax for the Plaintiff on May 12, 2014 is revoked.

1. Details of the disposition;

가. 원고는 1986. 7. 21. 부산 AA구 BB동 X9-Y5 전 3,0XX㎡(이하 '이 사건 쟁점토지'라 한다)를 상속으로 취득한 후 2012. 5. 31. 매매대금 1,XXX,500,000원에 양도한 다음 양도소득세 확정신고(신고기한 2013. 5. 31.)를 하지 않다가 2013. 11. 29. 납부세액을 240,XXX,380원으로 양도소득세를 계산하여 기한 후 신고를 하였으나 납부는 하지 않았고, 2013. 12. 10. 그 납부세액을 0원으로 하여 재신고하였다.

나. 피고는 2014. 1. 17. 원고에게 기한 후 신고 무납부한 부분에 관하여 201X년 귀속 양도소득세 242,XXX,350원을 납부・고지하였고, 그 후 2014. 2. 24.부터 2014. 3. 5.까지 원고에 대하여 양도소득세 현장확인을 하였는데, 그 결과 취득가액을 과다계상한 부분과 이 사건 쟁점토지 중 양도 당시 농지조건을 갖추지 못한 1,XXX㎡를 확인하고 이 부분에 대한 자경농지 양도소득세 감면을 배제한 다음 산출세액을 309,XXX,282원으로 산정하여 2014. 5. 12. 원고에게 201X년 귀속 양도소득세 113,XXX,950원(가산세 61,XXX,056원 포함)을 추가로 경정・고지하는 처분(이하 '이 사건 처분'이라 한다)을 하였다.

C. The Plaintiff filed an appeal with the Tax Tribunal on July 24, 2014, but the said appeal was dismissed on December 29, 2014.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition should be revoked because it is illegal and unjust for the following reasons.

1) The key land in this case was transferred on May 31, 2012, and the officially assessed individual land price in 201 X was also publicly announced on the same day. Pursuant to the principle of non-taxation in the main sentence of Article 157 of the Civil Act, the publicly announced individual land price in 201 X shall take effect on the following day. As such, in calculating the acquisition value of the key land in this case as the conversion price of the land in 201, the officially announced individual land price in 201 shall take effect (hereinafter “

2) In this case where the Plaintiff reported the tax base of capital gains tax and the amount of tax and did not pay the amount of tax on the ground that the amount of tax is reduced or exempted due to its own farmland, it is unlawful to impose penalty tax without filing a return, and it is not possible to obtain penalty tax for additional tax 61, capital gains tax, and 056 won even though the general rate of penalty tax not filing a return was 20

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to the first proposal

A) Article 11 of the Public Notice of Values and Appraisal of Real Estate Act (hereinafter referred to as the "Public Notice of Real Estate Act") provides that the head of a Si/Gun/Gu shall annually determine and publicly announce prices per unit area of individual land (hereinafter referred to as "individually announced land prices") within his/her jurisdiction as of the basic date of the officially announced land price, but the detailed details of the calculation, verification, determination, and public announcement of the officially announced land price shall be determined by Presidential Decree. Article 20 (1) of the Enforcement Decree of the same Act provides that "the date stipulated in each subparagraph of Article 15 (2) shall be determined and publicly announced by May 31 (in cases of Article 15 (2), the date stipulated in each subparagraph of the same paragraph)" and Article 11 (2) provides that the head of a Si/Gun/Gu shall post a notice of matters concerning filing objections to the officially announced land price on the bulletin of the Gu/Si/Gun/Gu, while the basic date of the officially announced individual land price is not explicitly stipulated in the Public Notice Act, the main sentence of Article 16 of the Act shall be determined on the basic date.

Thus, the officially assessed individual land price shall be calculated on the basis of January 1 of each year, which is the basic date, but the publicly notified individual land price shall be made by May 31 of each year under Article 20 (1) of the Enforcement Decree of the Public Notice of Real Estate Act.

B) However, in calculating the standard market price of land, Article 164(3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23588, Feb. 2, 2012) provides that “If a new individual land price is acquired or transferred before the new standard market price is publicly notified, it shall be based on the immediately preceding standard market price.” As seen earlier, the basic date of the officially assessed individual land price is January 1, and its public announcement is merely made after the basic date, so it is desirable to apply the officially assessed individual land price adjacent to the basic date so that the value of the land can be appropriately reflected. Thus, if a new individual land price is publicly announced, it would be consistent with the provisions of the publicly announced individual land price or the purport of the provision of Article 1

Therefore, it is reasonable to view that the officially announced individual land price should be applied even when the immediately announced individual land price was transferred on the same day. Thus, in converting the acquisition price of the instant land into the acquisition price of the instant land in the same case between the transfer date of the instant land and the publicly announced individual land price in the year 201 X, the officially announced individual land price in the year 201 X shall be applied, not in the case of converting the acquisition price of the instant land in the instant case

2) Determination as to the second proposal

A) According to Article 105(1) of the former Income Tax Act (amended by Act No. 11146, Jan. 1, 2012; hereinafter “former Income Tax Act”), a resident who transfers a parcel of land, which is an asset under Article 94(1)1, shall file a preliminary return with the head of the tax office having jurisdiction over the place of tax payment, as prescribed by Presidential Decree, within two months from the last day of the month in which the date of transfer falls, as prescribed by Presidential Decree. According to Article 110(1) of the same Act, a resident who has the amount of capital gains in the relevant taxable period, shall file a final return (final return) with the head of the tax office having jurisdiction over the place of tax payment from May 1 to 31 of the year following the relevant taxable period, as prescribed by Presidential Decree

Meanwhile, according to Article 47-2(1)1 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014), where a taxpayer fails to file a return of tax base of income tax (including a preliminary return and a interim return), an amount equivalent to 20/100 of the calculated tax amount under the Income Tax Act shall be determined as an additional tax. With respect to reduction or exemption of income, Article 90 of the former Income Tax Act provides that the amount calculated by applying the tax rate from the tax base of capital gains shall be deducted from the calculated tax amount, which is the amount calculated by applying the tax rate from the calculated tax amount,

B) However, the Plaintiff should have reported the pertinent tax base to the competent tax office by May 31, 2013 after selling the pertinent land on May 31, 2012, but on November 29, 2013, the fact that the date for filing the final return of capital gains tax was reported to the competent tax office on November 29, 2013 is as seen earlier.

Therefore, it is difficult to view that the Defendant’s imposition of KRW 61,056, which is an additional tax equivalent to 20/100 of capital gains tax amounting to 309, capital gains tax, capital gains tax, 282 won (=309, capital gains tax, 282 won x 20/100, and less than won), and therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.