Whether the calculation of reasonable fees is lawful by means of retroactive appraisal fees;

Since the rent calculated by an unreasonable retroactive appraisal cannot be deemed as the base price (see, e.g., Supreme Court Decision 93Nu19146, Aug. 26, 1994). As such, it is inappropriate to determine whether a low-price rental is an act of lease and whether a justifiable amount of tax is calculated based on the retroactive appraisal fee.

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

In a case where a business operator leases real estate at an unreasonably low price to a person with a special relationship, the market price of real estate rental services, which serves as the tax base for the lease of real estate, shall be based on the price formed in normal transactions with the business operator and unrelated parties. In the absence of such a transaction practices, the market price by a reliable appraisal institution may be deemed as the market price. However, such appraisal price shall be calculated by objective and reasonable methods, taking into account the location of the real estate, the surrounding environment, utilization status, and the reasonable transaction price of real estate in the neighboring and similar areas (see, e.g., Supreme Court Decision 97Nu1570, Sept

According to the reasoning of the lower judgment, the lower court determined that the amount of the rent for the instant land was calculated on the basis of the appraisal result of the first instance trial appraiser right ○○○○○, which adopted the so-called proper mountain method, which adopts the method of calculating the rent by adding all the expenses necessary for lease after multiplying the basic price of

However, we cannot agree with the above appraisal results or the decision of the court below that adopted them in light of the above legal principles and records.

The expected interest rate under the U.S. Act refers to the ratio of profits expected to be incurred in the acquisition of real estate to be leased, which shall be determined by taking into account the national and public bonds interest rate, long-term loans from banks, general public interest rate, normal real estate transaction profit rate, State Property Act and loan rate stipulated under the Local Finance Act (see, e.g., Supreme Court Decision 2002Da31483, Oct. 25, 2002).

However, according to the records, the appraisal report stating the appraisal result or the fact-finding inquiry by the court below is evaluated as identical 2.4% from 1998 to 2002. The expectation rate of the land of this case is determined as equal. Article 26(1) of the Enforcement Decree of the State Property Act, Article 23 of the Seoul Special Metropolitan City Ordinance on Public Property Management, Article 49(4) of the compensation evaluation guidelines established by the Korea Appraisal Association, and the general market interest rate of January 1998 to 2002. The above fact-finding reply lacks specific and reasonable explanation of all the circumstances to be considered in calculating the expectation interest rate and the process of calculating the expectation interest rate. However, the above fact-finding reply lacks the expectation rate of 11 rental cases in Seoul Special Metropolitan City as the basis for calculating the above expectation rate, and it is difficult to view the above expectation rate of 10% of the rent rate of this case as the above general interest rate of 9% compared to the above appraisal agreement.

As seen above, the judgment of the court below that calculated the market price of the rental service of the land of this case by adopting the appraisal result that violates the rule of experience or goes against the basic principles of the hostile law is erroneous in the misapprehension of the rules of evidence or misunderstanding the legal principles as to the calculation of the expected interest rate of the hostile law. The ground of appeal No. 1 pointing this out is with merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating

Related Acts and subordinate statutes

[Framework Act on National Taxes]

Article 14 (Real Taxation)

(1) If the ownership of income, profit, property, act or transaction subject to taxation is merely nominal and a person to whom such ownership belongs exists, the tax-related Acts shall apply to such person to whom such person actually belongs as a taxpayer.

(2) The provisions concerning the calculation of tax base in tax-related Acts shall apply according to the substance, notwithstanding the name or form of income, profit, property, act or transaction.

Article 16 (Ground Taxation)

(1) If any person liable for tax payment keeps and enters a book under tax-related Acts, the investigation and determination of the tax base of the national tax concerned shall be based on the book kept and entered and related documentary evidence.

(2) In investigating and determining national taxes under paragraph (1), if the contents of the entry are different from facts or are omitted from the entry, it may be determined in accordance with the facts examined by the Government for such part.

(3) When the Government examines and determines any fact different from the contents of entry or omission in the entry under paragraph (2), the fact examined and ground for determination by the Government shall be stated additionally in the determination note.

[Valued Tax]

Article 21 (Settlement and Correction)

(2) Where the head of a district tax office having jurisdiction over a place of business, the Commissioner of the competent Regional Tax Office or the Commissioner of the National Tax Service determines or revises the tax base and amount of tax payable or refundable for each taxable period pursuant to paragraph (1), he/she shall do so on the basis of tax invoices, account books and other evidence:

1. Where tax invoices, books, and other evidence necessary for calculating the tax base do not exist or important parts are incomplete;

2. Where the contents of tax invoices, account books, and other evidence are obviously false in light of the scale of facilities, the number of employees, and the market prices of raw materials, commodities, products, or various charges;

3. Where the contents of tax invoices, account books, and other documentary evidence are obviously false in light of the quantity of raw materials used, power used, and other operational conditions.

[Enforcement Decree of the Value-Added Tax]

Article 69 (Methods of Estimation, Determination and Revision)

(1) Estimated amounts under the proviso to Article 21 (2) of the Act shall be as follows:

1. The method of calculating by way of a type of sphere with other partners in the same business, whose book keeping is deemed to be justifiable and whose report has not been corrected under the provisions of Article 21 (1) of the Act in good faith;

2. Where there exists any production ratio surveyed by the Commissioner of the National Tax Service with respect to input raw materials by industry, the method of calculating by applying the market price of the quantity supplied during the relevant taxation period to the production amount

3. Where the Commissioner of the National Tax Service has business efficiency which determines the relationship between the quantity and value of human and material facilities (employee, guest rooms, places of business, vehicles, water supply, electricity, etc.) related to the business and the sales, the method of calculating by applying such business.

4. Calculation method by any of the following criteria determined by the Commissioner of the National Tax Service for each type of business or each region:

(a) Input quantity per unit of won, which determines the relationship between the quantity of all or part of the raw materials and supplementary materials input for production and the quantity of production;

(b) A cost-related ratio which determines the relationship between all or some of the costs and sales among personnel expenses, rent, material expenses, water, mineral heat, and other operating expenses;

(c) A commodities turnover rate which determines the relationship between the average stored amount during a fixed period and the sales amount or the sales price;

(d) A sales profit rate which determines the ratio of the sales to the gross sales profit during a fixed period;

(e) The value-added rate determined by the sales amount and value-added amount during a fixed period.

5. In cases where the ratio under subparagraphs 2 through 4 may be computed on the businessman subject to the determination and revision of estimation, the method of calculation by applying it thereto;

6. For food, accommodation and service business, which are mainly traded for end-consumers, the method of calculating according to the membership inspection criteria determined by the Commissioner of the National Tax Service.

[Food Sanitation]

Article 27 (Sanitary Education)

(2) Any person who intends to run the business as prescribed in Article 21 shall, in advance, undergo an education on sanitation (shortest omission).

(3) Where a person who is not directly engaged in the business or intends to operate a business in not less than two places, from among those who are obliged to receive the sanitation education under paragraphs (1) and (2), designates a person responsible for food sanitation from among his/her employees, he/she may have such person responsible for the business receive the education (the short sentence omitted).