Determination on whether the transfer value of land and buildings is unclear and on the acquisition value of buildings;

It seems that the objective exchange values were reflected because the land prices and building prices are clearly divided at the time of the contract, and the acquisition value of the building is the obligation of the plaintiff for double entry bookkeeping, and it is an amount obtained by subtracting depreciation costs from the tax acquisition

1. The Defendant’s disposition of imposition of capital gains tax of KRW 432,835,420 against the Plaintiff on May 6, 2009 shall be revoked.

2. Of the costs of lawsuit, the costs of appraisal are assessed against the Plaintiff, and the remainder are assessed against the Defendant.

The same is as the order (the date of May 30, 2009 of the complaint seems to be a clerical error in May 6, 2009).

1. Details of disposition;

A. On July 5, 1995, the Plaintiff acquired a 822,200,000 square meters for each of the above lands by acquiring a 1088-4 large 119 square meters for each of the above lands at KRW 1088-5 large 2,537 square meters for each of the above lands at KRW 82,20,00,00. On July 5, 1995, the Plaintiff sold a part of the land after undergoing a merger and division procedure, and owned a 108-5 large 1,314 square meters for each of the above lands, and a 1088-17 large 196 square meters for each of the remaining lands (hereinafter “the remaining land”).

B. After that, the Plaintiff and the Plaintiff’s birth, as 1/2 shares, newly constructed an officetel 4,931.91 square meters of the instant land on the ground of the same 1088-5 square meters among the instant land (hereinafter “the instant building”).

C. On March 5, 2007, the Plaintiff and Cho Byung-il transferred all of the instant land and buildings to BBCD Co., Ltd. (hereinafter “B”) totaling KRW 6,700,000,000 (including the value-added tax of KRW 400,000,000,000, including the value-added tax of KRW 400,000,000), and the ownership transfer registration was completed on April 3, 2007 under BB’s name.

D. On April 30, 2007, the Plaintiff filed a preliminary return on the tax base of capital gains tax with the actual transaction value of KRW 467,440,512, and the transfer value of KRW 2,700,000,000 as the actual transaction value. The acquisition value of the building of this case of KRW 1,813,95,688, and the transfer value of KRW 2,000,000 as the actual transaction value (=4,000,000,000 ± 2).

E. From September 8, 2008 to October 7, 2008, the Defendant conducted a tax investigation with the Plaintiff, as a result of which the actual transaction price was confirmed and recognized as to KRW 467,440,512 of the land of this case, but with regard to the transfer value, the transfer value is unclear, applying Article 100(2) of the Income Tax Act, Article 166(6) of the Enforcement Decree of the Income Tax Act, and the proviso of Article 48-2(4) of the Enforcement Decree of the Value-Added Tax Act, the Defendant calculated the total purchase value of the land of this case by dividing it into the standard market price of the land of this case at the time of transfer (hereinafter referred to as the “an amount calculated by dividing it into the standard market price of the land of this case”) by 3,682,958,543 won, and the acquisition value was calculated by 1,508,180 won,520,728 won.

F. On June 30, 2009, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition. However, the Tax Tribunal dismissed the appeal on December 30, 2009.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 7, 8, Eul evidence Nos. 1, 2, 8, 9, 10 (including each number), and the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

A. The plaintiff principal

1) At the time of concluding a sales contract for the instant land and building, the Plaintiff and B entered the entire sales price in KRW 6,700,000,000; the sales price of the instant land in KRW 2,700,000; and the sales price of the instant building in KRW 4,00,000; and the sales contract was divided into KRW 4,00,000,000; and the price among co-owners of the instant building was also received in accordance with the aforementioned classification. Ultimately, the instant disposition was unlawful on the premise that the sale price of the instant land was computed by the free will of the parties, and the transfer was clearly distinguishable from the value of the land and the building, on the premise that the classification is unclear.

2) Although the acquisition value of the instant building is indicated as KRW 2,663,251,498 on the account book, the actual acquisition value is at least KRW 5 billion since the failure to receive receipts in the direct construction by the Plaintiff, etc., and the failure to receive receipts was made. Thus, the instant disposition based on the acquisition value on the said account book is unlawful.

(b) Related statutes;

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to whether the classification of the value of the land and the building in the instant case is differentiated

In calculating the transfer price difference, the total transfer price stated in a sales contract, which is ordinarily used as the basis for a trade taxation, is recognized as the actual transaction price, but in order to deny the transaction price of each real estate divided into land and buildings within the scope, and to make the transaction price unclear, there should be sufficient arguments and proof as to the unclear reasons (see, e.g., Supreme Court Decision 80Nu429, Nov. 11, 1980).

The issue of this case is whether the transaction value of the land and buildings in this case is significantly unfair, since the defendant does not dispute the private theory of 6,700,000,000.

In full view of the evidence mentioned above, Gap's evidence, Eul's evidence Nos. 6, 9, 10, 11, 12, 13, 14, and Eul's evidence Nos. 5 (including various numbers), the whole purport of the pleadings is as follows: ① When the plaintiff and Cho Byung-il prepared a sales contract, the plaintiff and Cho Byung-il entered the purchase price of the land and buildings of this case as KRW 2,70,000,400,000, respectively; ② the officially announced price of the land of this case at the time of transfer is KRW 2,793,50,000, and the plaintiff's 1/2 shares among the building of this case (hereinafter referred to as "the building of this case") into the account of Cho Byung-il; ③ The sale contract of this case is approved for the use of the building of this case after the lapse of 14,203,120,300 after the lapse of 198.

According to the above facts, it is difficult to view that some purchase proceeds of the instant land and building are unfair. However, as recognized in the following, the estimated acquisition price at the time of new construction of the instant building is 5,279,051,00 won, and the price of the instant building is clearly distinguishable from the price of the instant land at the time of the construction of the instant building. There is no evidence suggesting that removal is necessary due to safety problems at the time of the transfer of the instant building to 10 stories which has passed nine years from the date of new construction. In other words, the land price or standard market price of the instant land and building is determined lower than the sale price of the instant building, namely, ① the sale price of the instant land and building is determined as the sale price of the instant building is lower than the sale price of the instant building, and the acquisition price of the instant building is lower than 2,700,000,0000,000 won, which is less than the sale price of the instant building as the sale price of the instant building.

Therefore, the instant disposition that calculated the transfer amount by dividing the total purchase price of the instant land and buildings by the standard market price of the instant land at the time of transfer on the ground that the distinction between the transaction value of land and buildings is unclear is unlawful.

2) Determination on the acquisition value of the building of this case

The plaintiff asserts that the defendant did not reflect the actual acquisition value of the building of this case in the amount below KRW 5,285,00,000, which was the standard building cost at the time of acquisition of the building of this case, 2,663,251,498, which was recognized as the basis of the plaintiff's account book.

According to the appraisal result of appraiser ParkCC’s acquisition value, it is recognized that the estimated acquisition price was calculated as KRW 5,279,051,00 at the time of new construction of the building of this case according to the criteria for preparation of estimated price (Article 220.04-160-6, September 21, 2009 of the Accounting Rules) based on the design drawing of the building of this case.

However, comprehensively taking account of the aforementioned evidence and evidence Nos. 5-1, 2, and 6 evidence Nos. 5-1, 5-2, and 6, the entire purport of the pleadings is as follows: ① the standard market price at the time of the acquisition of the building of this case was KRW 2,075,577,526; ② the Plaintiff appropriated the acquisition price of the building of this case in the balance sheet prepared while operating the building of this case as KRW 2,63,251,498; ③ the Plaintiff obtained the deduction of KRW 700,435,137 as depreciation costs when calculating the rental income based on the above acquisition price.

In light of the above facts and relevant Acts and subordinate statutes, it is recognized that ① the Plaintiff is a person responsible for double-entry keeping books at the time of the above rental business, ② the acquisition value recorded in the balance sheet is verified during the Plaintiff’s deliberation process on the Plaintiff’s global income tax base return on global income tax, ③ the standard construction cost cannot be immediately recognized as the expenses actually paid, ④ the Plaintiff is not able to submit data on the expenses additionally paid, in addition to the acquisition value stated in the balance sheet, and ⑤ BB was a plan to remove the instant building at the time of acquiring the instant building.

Therefore, the Defendant’s disposition of this case, calculated by deeming the Plaintiff as the acquisition value of the building of this case the amount of KRW 1,962,81,616,361 (i.e., KRW 2,63,251,498 - KRW 700,435,137) calculated by deducting the depreciation amount from the value on the account books of the building of this case, which was reported based on the Plaintiff’s tax return as the person liable for re-entry in the balance sheet as well as on the balance sheet.

3) Sub-determination

Ultimately, the instant disposition, which is calculated by dividing the transfer value of the land and building of this case by the standard market price rather than the actual transaction price, is unlawful, and there is no proof of legitimate tax amount, so the entire disposition of this case should be revoked.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.