National High Court Decision 1996Da3414 ( December 23, 1996)

Transfer

Correction

Since it is improper to apply the officially assessed individual land price and other officially assessed land price publicly notified by the mayor having jurisdiction over the land by the agency, the agency shall calculate gains on transfer of land by applying the publicly announced individual land price publicly notified by the mayor.

소득세법 제96조【자산양도차익예정신고자진납부】 / 소득세법시행령 제166조【양도차익의 산정】

1. The transfer of the tax office in the Western District to ninety years, which was made to the claimant by the director of the tax office in the Western District; and

The imposition of income tax of 22,246,180 won and tax of 5,318,200 won shall apply:

Claimant 90.11.23 Of the land transferred by the claimant, the O-dong in Yong-do in Yong-do.

The officially assessed individual land price for 90 square meters of 623 square meters prior to theOO shall be 24,000 won per 1 square meter.

Ro, the officially assessed individual land price for 90 square meters in the Dong office OOOO forest 942 square meters

9,000 won per square meter, and the tax base and amount shall be corrected.

2. The remaining claims are dismissed;

1. Summary of disposition;

The claimant acquired 4,229.5 square meters (see attached Form 2; hereinafter referred to as "land in dispute") out of 00.12, and transferred 88.12, 90.23, the claimant filed a final return on the tax base based on the actual transaction price, and filed a report on the acquisition price of the land in question at KRW 28,149,00, and the transfer value at KRW 35,000,000.

On January 16, 96, the disposition agency calculated the transfer margin on the basis of the standard market price so that the actual transaction price reported by the claimant is not confirmed, and determined and notified 2,246,180 won and 5,318,200 won and 5,318,200 won.

The claimant appealed against this and filed an appeal on Sep. 10, 96.3.11, 96.6.1O.

2. Opinions of the applicant and the Commissioner of the National Tax Service;

A. Claim assertion

(1) Even though a sales contract to confirm the actual transaction price at the time of the acquisition and transfer of the land at issue and a written confirmation of the fact of transaction, a disposition to deny the actual transaction price at the disposal agency without any fact-finding and to calculate the gains on transfer at the standard market

(2) Even if a tax is levied on the basis of the snow stations and the standard market price, it is unreasonable to apply the officially assessed individual land price different from the publicly notified individual land price at the time of the transfer to the land of 623 square meters and 942 square meters of forest land located in the same OOO located in Hancheon-do, Hancheon-do, Seoul-do, and the land at issue. Therefore, the transfer margin should be calculated by applying the publicly notified individual land price as publicly notified

(b) Opinions of the Commissioner of the National Tax Service;

At the time of acquisition and transfer of the disputed land by the claimant, the price in Korea has increased rapidly. The transfer price reported by the claimant is 35,000,000 won, but the transfer price in the seal of approval contract is 64,90,000 won, and the reported transfer price is 30.2% of the officially assessed individual land price, which is merely 30.2% of the reported transfer price.

3. Hearing and determination

(a) Points in dispute;

(1) Whether the actual transaction price at the time of acquisition or transfer of the key land is confirmed

(2) Whether there was an error in applying the officially assessed individual land price at the time of transferring the key land

B. Whether the actual transaction price can be confirmed at the time of acquisition and transfer of the pertinent land

(1) According to Articles 96 subparag. 1 and 90(1)1 of the Income Tax Act (amended by Act No. 5031 of Dec. 29, 95), the transfer value and acquisition value in calculating the transfer value of land and buildings shall be the standard market value at the time of transfer and acquisition, but the “cases determined by the Presidential Decree” shall be based on the actual transaction value in consideration of the type, holding period, transaction size, transaction method, etc. of the relevant assets.

Article 166(4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14860, Dec. 30, 95; Presidential Decree No. 14860, Jan. 1, 96) refers to cases falling under any of the following subparagraphs:

1. through 2. (Omission)

3. Where the transferor makes a report on the actual transaction price at the time of transfer or acquisition to the head of the tax office having jurisdiction over the place of tax payment with documentary evidence within the date of determination of tax base and tax

In applying the provisions of paragraph (4), in cases falling under any of the following subparagraphs, the provisions of paragraph (5) of the same Article may be excluded from the application of the actual transaction price after consultation under paragraph (6):

1. (Omission)

2. In the case of paragraph 4(3), the report is stipulated as follows: “Where the actual transaction price cannot be confirmed by the transaction documents, etc.”

(2) As to the actual transaction price at the time of acquiring the pertinent real estate

The claimant asserts that he acquired the disputed land in KRW 28,149,00, and presented a sales contract of November 1, 200. However, it is difficult to view that the sales contract presented by the claimant does not constitute a case where the real acquisition value of the controversial land is confirmed, since there is no intermediary and there is no evidence to prove the fact of the transaction of the purchase price.

(3) As to the actual transaction price at the time of the transfer of the pertinent real estate

The claimant asserts that he transferred the disputed land in KRW 35,00,000, and presented only the sales contract and the certificate of OOO on October 23, 900 as the purchaser, and there is no presentation of reliable evidence about receipt of the purchase price. In addition, the claimant's assertion that he transferred the land price to approximately KRW 124% of the acquisition price and approximately KRW 45% of the officially assessed individual land price even though the land price in Korea increased from the time of acquisition until the time of transfer.

(4) If so, the actual transaction price at the time of acquisition or transfer reported by the claimant cannot be confirmed as a fact, so it is reasonable to calculate the transfer margin of the land at issue based on the standard market price.

C. Whether there was an error in the application of the officially announced land price in calculating gains on transfer of the key land

(1) According to Article 60 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 94) and Article 115(1)1 of the Enforcement Decree of the same Act, the determination of the standard market price shall be the land price for the land located other than the area designated by the Commissioner of the National Tax Service, which is calculated on the basis of the officially announced land price under Article 10 of the Act on the Public Notice of Land Price and the Evaluation of Land, etc. (hereinafter “individually announced land price”), but for the land without a publicly announced individual land price, it shall be the price assessed on the basis of the method determined by

According to Article 10 (1) 6 of the Public Notice of Land Price and the Evaluation of Land, etc. Act and Article 12 of the Enforcement Decree of the same Act, the officially announced land price may be applied or adjusted to increase or decrease for the purpose of purchasing land for public use, expropriation and use of land, and adjustment of the standard

Article 10-2 (1) of the same Act provides, “The head of a Si/Gun/Gu shall determine and publicly announce the value of individual land per unit area in his/her jurisdiction as of the basic date of the officially announced land price every year after deliberation by the Si/Gun/Gu Land Evaluation Committee under Article 12-2 in order to impose excess ownership charges under the Act on Ownership of Housing Sites, impose development charges under the Restitution of Development Gains Act, and use it for the calculation of land prices for other purposes prescribed by other Acts and subordinate statutes.”

(2) In calculating gains from the transfer of the pertinent land, the disposal agency shall verify the fact that the standard market price (individually publicly notified land price) at the time of transfer of 623 square meters (hereinafter referred to as “land subject to dispute ①”) and 942 square meters of forest land located within the same OOOO located within the OOO of the pertinent land among the key land, is 25,000 won per 1 square meter, respectively, based on the related data.

On the other hand, according to the answer sent by the annexed market for the verification of the officially assessed individual land price in the year 90 to be applied at the time of the transfer of the above land at the party inquiry office (cadastral 58323-335, 96.12.3), the officially assessed individual land price per square meter of the land at issue ① is 24,000 won, and the officially assessed individual land price per square meter of the land B is confirmed to be 9,000 won.

(3) Considering the above facts, it is confirmed that the disposition agency calculated the transfer margin by applying the officially assessed individual land price different from the publicly announced individual land price in applying the said officially assessed individual land price in error to the point at the time of transfer ①, and ② in applying the publicly announced individual land price of the land. Since the decision of the officially assessed individual land price was made after deliberation by the Land Evaluation Committee, it is unfair for the disposition agency to apply the publicly announced individual land price of the said land and the publicly announced individual land price of the said land, so it is determined that the disposition agency should calculate the transfer margin of the land (i) applying the publicly announced individual land price of the said city.

D. Since the petition for a trial on this case has some grounds, it shall be decided as ordered in accordance with Article 81 and Article 65(1)2 and 3 of the Framework Act on National Taxes.