A disposition of dividing the actual transfer value by the ratio of the standard market price due to unclear land and building value.

Considering that there is no reasonable reason for the transfer value of the building to be 600 million won or the standard for calculating the value of the building, that the building seems to be to be removed after the transfer, and that there is a big difference between the value of the building and the value of the standard market price, the value of the building is difficult to be considered as the actual transaction value, and it should be considered the arbitrarily

Article 96 of the former Income Tax Act, Article 99 of the former Income Tax Act

Article 100 of the former Income Tax Act, Article 166 of the former Enforcement Decree of the Income Tax Act

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 260,849,640 for the Plaintiff on August 9, 2006 shall be revoked.

1. Details of the disposition;

A. On January 11, 1974, the Plaintiff acquired a building listed in the separate sheet No. 1,2,4,50 square meters, ○○○○○○, 195 square meters, 193-7 large 3,462 square meters, 193-14 square meters, 193-14 large 1,973 square meters, and 1,973 square meters (hereinafter referred to as “the instant land” in this case) and the building listed in the separate sheet No. 3 from 1989 to 193, and newly constructed a building listed in the separate sheet No. 1,2,4,5, and 6 on the instant land (hereinafter referred to as “the instant building” in the separate sheet).

B. Thereafter, on November 17, 2005, the Plaintiff sold the instant land and buildings to Nonparty 1,750,000,000 won to Nonparty 1,750,000,000 won, and on January 31, 2006, the transfer value and acquisition value of the instant land shall be the actual transaction value, and on January 31, 2006, the transfer value of the instant land shall be KRW 1,150,00,000, the acquisition value shall be KRW 80,047,621, the transfer value of the instant building shall be KRW 600,00,00,000, and the acquisition value shall be KRW 116,64,955, and accordingly, the Plaintiff reported and paid KRW 73,492,674.

C. As a result of conducting a tax investigation on the plaintiff, it is deemed that the distinction between the value of the land and the building of this case is unclear, the defendant: Article 100 (2) of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the same shall apply); Article 166 (4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005; hereinafter the same shall apply); Article 48-2 (4) proviso of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19215 of Dec. 30, 2005; hereinafter the same shall apply); 1,750,00,00,000,000 won for the land of this case and the building of this case; 50,000 won for the total transfer value of the land of this case; 50,06750,810,

D. On April 9, 2007, the Director of the National Tax Tribunal requested the National Tax Tribunal for the pertinent disposition, and on the above appeal, on the premise that the Defendant calculated the transfer value of the instant land and the building, the area of the instant building is 2,454 square meters, which is the area indicated in the certified copy of the building registry, but the Plaintiff decided to re-calculated the transfer value, since the actual area of the instant building is 4,042 square meters.

E. Accordingly, the defendant calculated the transfer value of the land of this case according to the standard market price at the time of the transfer of the land of this case and the building of this case [1,61,374,212 won = Total transfer value = 1,750,250,000 won at the time of the transfer of the land of this case and the building of this case 1,226,407,50 won at the time of the transfer (= 1,129,258,000 won + 97,147,149,450 won + 1,460 won at the time of the transfer of the land and the building of this case + 360 won at the time of 40,625,788 won (= Total transfer value per 1,750,750,000 won) at the time of the disposal of the land of this case and the building of this case, 309 won at the time of the disposal of this case, 207450,79

[Ground of recognition] Facts without dispute, Gap 3's evidence 1, 2, 5, Gap 6's evidence 1, 2, Eul 1, 2 and 3's evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On April 11, 2005, the appraised value of the instant land was KRW 1,122,750,000, and based thereon, the sales price of the instant land was set at KRW 1,150,000,000. Separate from the instant land, the value of the instant building was assessed as KRW 600,000,000, and the sales contract was also separately prepared. Thus, the value of the instant land and the building is distinguishable from the value of the instant land and the building, and even the sales contract was also formulated. Thus, the instant disposition is unlawful in violation of Article 100(1) and (2) of the Income Tax Act, on the ground that the instant land and the building are the cases where the distinction between the value of the instant land and the building is unclear, even though there are no circumstances to deem that the value is remarkably unreasonable

B. Relevant statutes

former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)

Article 94 (Scope of Transfer Income)

Article 96 (Transfer Price)

Article 99 (Computation of Standard Market Price)

Article 100 (Calculation of Gains on Transfer)

Article 114 (Determination, Revision and Notification of Tax Base for Transfer Income and Amount of Tax)

The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005)

Article 166 (Calculation, etc. of Gains on Transfer)

Article 176-2 (Estimated Decision and Revision)

Enforcement Decree of the former Value-Added Tax Act (amended by Presidential Decree No. 19215 of Dec. 30, 2005)

Article 48-2 (Method of Calculating Tax Base)

(c) Fact of recognition;

(1) Around 2003, Nonparty Company attempted to purchase the instant land and the instant land located near Nonparty Kim Young-gun, Gyeonggi-gun, Gyeonggi-do, ○○○○-2, 194-4 (total size 11,102 square meters). around 2005, Nonparty Company requested ○○ appraisal corporation to conduct an appraisal of the instant land and its neighboring land, the appraised value of the instant land was KRW 1,122,750,000, based on April 11, 2005.

(2) On October 17, 2005, the Plaintiff concluded a sales contract for the instant land and building with the Nonparty Company separately prepared a sales contract for the instant land and building. The sales contract (Evidence A2-1) on the instant land entered the sales contract in KRW 1,150,00,000, and the sales contract (Evidence A-2-2) on the instant building entered the sales contract in KRW 600,000,000, and the area of the instant building is KRW 7,485,00 square meters. The total floor area of the instant building is approximately KRW 2,454,00 square meters in a certified copy of the registry, and is about KRW 4,042,00,000 in fact. Meanwhile, the Nonparty Company planned to remove the instant building to construct the instant apartment after acquiring the instant land and building.

(3) On November 17, 2005, Nonparty Kim Young-young transferred ○○○ 194-2, 194-4 land and its ground buildings to Nonparty Company KRW 3,97,200,000. After that, Kim Young-young reported the transfer value of land to KRW 3,760,159,891 by calculating the land and buildings according to the standard market price at the time of filing a preliminary return on the tax base of transfer income tax, and reported the transfer value of the building to KRW 243,520,00.

[Ground of recognition] The statements and images of Gap evidence 1-1-9, Gap evidence 1-2-1, Gap evidence 2-2, Gap evidence 3-1, 2-7, Eul evidence 1, 2-3, Eul evidence 4-1 through 8, Eul evidence 5, 6, and 8, witness's testimony and the purport of the whole pleadings

D. Determination

(1) In principle, the transfer value of assets is based on the standard market price at the time of transfer of the relevant assets, but where a person liable for tax payment makes a report on the actual transaction value at the time of transfer and acquisition by keeping evidential documents prior to a taxation disposition by the tax authority (Article 96(1)6 of the former Income Tax Act). If a person liable for tax payment of transfer income tax submits a sales contract concerning the acquisition and transfer, transaction confirmation, certificate of seal impression, etc. as evidentiary documents concerning the actual transaction value, the tax authority shall calculate the transfer value based on the actual transaction value on each of the above evidential documents unless there are special circumstances such as that each of the above evidential documents has been prepared differently (Article 95Nu3183, Jun. 25, 1996). However, even if the transfer value or acquisition value is calculated based on the actual transaction value, if the distinction between the land and the building, etc. is unclear, it shall be calculated pro rata as prescribed by the Presidential Decree considering the standard market price at the time of acquisition

(2) In the instant case, in a case where the transfer value or acquisition value is calculated based on the actual transaction value, it is examined as to whether the value of the instant land and the building is divided by the documentary evidence submitted by the Plaintiff.

① The Plaintiff asserted that the transfer value of the instant land was KRW 1,122,750,00,000, based on its appraisal value of KRW 1,150,000. However, the base point of time for appraisal is about April 11, 2005, there was a considerable difference between the conclusion date of the contract on the instant land on October 17, 2005. ② The non-party company was merely taking over the instant building for the purpose of acquiring the instant land, and it was difficult to recognize that the transfer value of the instant building was high. ③ The transfer value of the instant building was 00,000,000,000 won and KRW 10,000,000,000,000,000 won and KRW 50,000,000,000,000,000,000 won and KRW 50,000,000,00.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed for reasons.