Whether the standard market price is applied at the short term transfer

A short-term transfer due to economic poor conditions shall not be subject to the standard market price.

Article 10 (Calculation of Gains from Transfer)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 81,450,740 on the Plaintiff of October 14, 2005 is revoked.

1. Details of the disposition;

A. On July 26, 200, the Plaintiff: (a) donated 1/2 shares among 00 m2 of 84-2 m2 m2 of 00 m2 of ○○○○○-gun, ○○○○○, ○○-2 m2 of 84-3 forest m2 of the same Ri, 1,769 m2 of 84-3 forest m2 of the same Ri, and 84-6 forest 1,305 m2 of the same Ri (hereinafter collectively referred to as “each land of this case”); (b) transferred the shares to three other than Hong○, 2001; and (c) reported the transfer income tax for 2001 to the Defendant, the Plaintiff calculated the transfer gains by taking the transfer value as the standard market price; and (d) reported the tax base of

B. Accordingly, the Defendant calculated the transfer value of 1/2 of each of the instant lands - the acquisition value of 34,931,931,230 won - the acquisition value of 34,931,230 won - the necessary expenses 1,047,936 won - the transfer value of 162,014,265 won - the transfer value of 162,093,431 won - the acquisition value of 34,931,230 won - the transfer value of 164,000 won - the transfer value of 1,0014,000 won - 1,047,936 won - 1,047,936 won - the transfer income tax shall be imposed on the Plaintiff for 2014 October 14, 2005 - the transfer income tax shall be imposed on the Plaintiff under the standard market price at the time of donation.

[Ground of recognition] Facts without dispute, Gap evidence 9-1, 2, Gap evidence 10, Eul evidence 10, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

The defendant asserts that the disposition of this case is lawful in light of the above disposition grounds and related Acts and subordinate statutes, and the plaintiff asserts that the disposition of this case is unlawful on the following grounds.

(1) The Plaintiff’s transfer of one-half of each of the instant lands within one year from the date of donation not for the purpose of short-swing profit, but after his father ○○ died, prevents a third party from winning a successful bid, and disposes of one-half of each of the instant lands without any choice to bear the Plaintiff’s marriage expenses. Thus, this constitutes a case of transferring within one year from the date of acquisition due to an unavoidable cause under Article 96(4) of the Income Tax Act and Article 162-2(4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17158, Mar. 27, 2001; hereinafter “Enforcement Decree of the Income Tax Act”). Thus, the disposition of this case calculated gains from transfer based on the actual transaction price is unlawful even though the transfer value should be calculated based on the standard market price.

(2) Article 162-2(4) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17825, Dec. 30, 2002; Article 162-2(4) of the Enforcement Decree of the Income Tax Act) provides that the transfer value shall be calculated based on the standard market price even in the case of transfer within one year after the acquisition of real estate acquired by inheritance. In light of the fact that a leap○○ donated 1/2 of the land of this case to the Plaintiff was in the state of leap○○○○’s horse at the time of donation, and that the Plaintiff died after the date of actual donation, the transfer value shall be calculated based on the standard market price as it does not differ in the substance. However, the instant disposition in which the transfer value is calculated based on the actual transaction price, not on the standard market

(3) In calculating gains on transfer under Article 100 (1) of the Income Tax Act, when the transfer value is calculated based on the actual transaction value, the acquisition value shall also be calculated based on the actual transaction value. However, while the transfer value is calculated based on the actual transaction value, the acquisition value is calculated based on the standard market value at the time of donation pursuant to Article 163 (9) of the Enforcement Decree of the Income Tax Act. Article 163 (9) of the Enforcement Decree of the Income Tax Act provides that the transfer value shall be calculated based on the value appraised according to the standard market value at the time of donation pursuant to Article 163 (9) of the Enforcement Decree of the Income Tax Act. Since Article 163 (9) of the Enforcement Decree of the Income Tax Act is in violation of Article 100 of the Income Tax Act, its excessive expansion of gains on transfer by prescribing differently the evaluation method of acquisition value

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Prostitution

On July 26, 200, 000, ○○○○○ ○○○ ○○○ ○○ ○○○ , 537 square meters in each of the instant land, and 251 square meters in each of the instant land, 554 square meters in each of the instant land, 591 square meters in the same Ri 591 square meters in the same Ri 2,838 square meters in each of the instant land, and ○ ○ ○ , who is the Plaintiff’s living together, donated 1/2 shares in each of the instant land, 463 square meters in each of the instant land, and 702 square meters in each of the instant land, 00, 1/2 shares in each of the instant land, and 463 square meters in each of the instant land, 705 square meters in the same Ri 705 square meters in the same Ri 7

(2) On September 27, 200, the Plaintiff and ○○○ entered into a contract with three persons, namely, that each of the instant real estate and each of the instant real estate, ○○○○○-gun, ○○○○○○○-gun, 702, 463 square meters, and 705 square meters in 39,150,000 won, among the real estate under the said paragraph (1), to sell 705 square meters in 39,000 won in purchase, and the ownership of the instant real estate was transferred on March 9, 201.

(3) Meanwhile, ○○○○○○-gu ○○○-dong 228-52 large 51 square meters, and 19-4 Hobbbeon 1974.13, 1974, ○○-gu ○○○-si ○○○-dong 228-52 large 51 square meters and 19-4 middle 19-7.23, 1999, ○○-gu ○○-gu ○○○-gu ○○○-dong ○○○○-dong ○○○, which had been residing by the Plaintiff’s mother ○○, applied for a voluntary auction on July 23, 1999, and the auction procedure was conducted, ○○-si ○○-gu ○○-gu ○○-si,

(4) Around March 5, 2001, ○○○○○○○○○○○○○○○○○○ apartment united on ○○○○○○○, ○○○○○○, and then married with ○○○ on April 1 of the same year.

[Ground of recognition] The evidence No. 1-6, the evidence No. 2-1, the evidence No. 2, and the evidence No. 4-8

D. Determination

(1) Determination as to the existence of an inevitable reason

(A) Article 96(4) of the Income Tax Act and Article 162-2(4) of the Enforcement Decree of the Income Tax Act provide that "Where a real estate is transferred within one year from the date of its acquisition due to unavoidable reasons, such as expropriation of land, public compensation for losses, or expropriation (including purchase by consultation) under other Acts, if it is deemed that the person who acquired the real estate does not have traded for the purpose of short-swing profits in light of the developments leading up to the acquisition or transfer of the real estate and the utilization of the real estate, it may be based on the standard market price." This interpretation is reasonable to interpret that the transfer value of the real estate is based on the standard market price at the time of the transfer of the real estate only in cases where there are inevitable reasons for the person who acquired the real

Even if the economic poverty of the owner of a domestic real estate falls under an inevitable reason under Article 96 (4) of the Income Tax Act and Article 162-2 (4) of the Enforcement Decree of the Income Tax Act, the facts acknowledged by the above facts and the purport of the evidence No. 2-1, No. 2-1, 2-2, and the whole arguments;

① Voluntary auction for the Plaintiff’s mother ○○○’s residence was conducted from July 23, 199. At the time, ○○○ was not only owned property at the time, but also ○○○○○ was able to repay the collateral security liability for the said residence by selling or lending the property as security, following the death of ○○○○○○’s death on July 200 and August 200, ○○○○○○○, 486-1, 714 square meters at ○○○○○○○○, 590 square meters at 175 square meters at 601 square meters at 175 square meters at 175 square meters at 650 square meters at the same time, and 381 square meters at the same time at ○○○, ○○○, and ○○○ was able to repay the collateral security liability for the said residence.

② At the time of 200, the Plaintiff had worked in ○○○ Company, a her former leap, and her former leap○○ was not only in ○○ Hospital but also in possession of a number of parcels of real estate, the Plaintiff was able to raise funds to some extent by providing the said real estate as security, in addition to simply selling each parcel of real estate

③ On December 28, 1999, the Plaintiff sold ○ apartment with ○○ apartment with ○○○dong ○○○dong ○○○ apartment with ○○○ apartment with ○○○dong ○○○○dong, and it appears that there would have been enough property for the sales fund.

④ In light of the fact that ○○ acquired the ownership of a house of ○○ on April 2, 2001 and sold the said house on March 11, 2002, etc., it is difficult to deem that the Plaintiff had economic fluence at the time of transfer of each of the instant land. Therefore, this part of the Plaintiff’s assertion is without merit.

(2) Determination as to equity with the transfer of inherited real estate

Article 162-2 (4) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17825, Dec. 30, 2002; Presidential Decree No. 17825, Article 162-2 (4) of the Enforcement Decree of the Income Tax Act) provides that the transfer value shall be calculated based on the standard market price even in the case of transfer within one year after the acquisition of real estate by inheritance, where one house owner of one household becomes two or more houses due to inheritance, the transfer value shall be calculated based on the standard market price not based on the actual transaction price, for the purpose of reducing the tax burden due to succession of the inherited house. The purport of the amendment of the Enforcement Decree of the Income Tax Act or the inheritance is to be succeeded to by law regardless of the intention of the parties, the donation is clearly distinguishable from that of the parties regardless of the intention of the donor and the donee. Thus, even if 00 won donated 1/2 shares of each of the land of this case to the plaintiff at the end of this time, even if the plaintiff died thereafter.

(3) Determination on whether Article 100(1) of the Income Tax Act is violated

(A) The actual transaction value at the time of acquisition stipulated in Article 100(1) of the Income Tax Act includes the transaction example, appraisal value, conversion value, or market price where it is impossible to confirm the actual transaction value pursuant to Article 114(5) of the Income Tax Act. In general, where it is impossible to confirm the actual transaction value, the acquisition value shall be calculated by applying the provisions of Article 16(12) of the Enforcement Decree of the Income Tax Act. However, if it is a single example provision provided in the parent law, it is only one example provision provided in Article 163(9) of the Income Tax Act, which is the special provision under delegation of Article 97(1)1 of the Income Tax Act, which is the special provision under Article 163(12) of the Enforcement Decree of the Income Tax Act, and such special provision is interpreted as a mortgage and a reasonable lower norm to faithfully comply with the principle of taxation standards based on the same actual transaction value.

(B) Therefore, in this case where the actual transaction price at the time of donation of each land of this case cannot be confirmed, the acquisition price of each land of this case shall be calculated with the value assessed according to the standard market price at the time of donation pursuant to Article 163 (9) of the Enforcement Decree of the Income Tax Act. Thus, the plaintiff's assertion on this part is without merit.

3. Conclusion

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