The transfer value of the real estate in this case, which is calculated as the exchange value without market price appraisal, cannot be recognized as the actual transaction value.

In the case of exchange, the method of calculating the standard market value without the market value and reporting only the transfer value as the standard market value is an error in the Income Tax Act, and the disposition of this case where the estimation is corrected according to the standard market value both the transfer and acquisition

Article 96 of the former Income Tax Act: Calculation of Transfer margin under Article 100 of the former Income Tax Act

2014Gudan100124 Revocation of Disposition of Imposing capital gains tax

○ Kim

The Director of Budget Office

May 16, 2014

June 13, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

On January 3, 2013, the Defendant revoked the imposition of capital gains tax on the Plaintiff ○○○, ○○○, and ○○○○○○○○.

1. Details of the disposition;

A. The Plaintiff’s land and building thereon (hereinafter referred to as “land and building”) with the size of 459.1m2, Seo-dong, Seo-gu, Seo-gu, Seocheon-gu, Seocheon-si

The sum of water is the owner of the instant real estate. The Plaintiff, ○○○○ and Kim Jong-si, each of whom concluded a contract with ○○○○○○○-do 135-10 square meters of land for 8,065 square meters, 135-16 forest land per annum 14,111 square meters, 47-11 forest land per annum 694 square meters (hereinafter referred to as “exchange real estate by adding all three parcels”), and the Plaintiff entered into a contract with Kim○-○, Kim Jong-dong on April 10, 2012 to exchange the instant real estate with the instant real estate.

B. On April 20, 2012, the exchange contract entered into between the Plaintiff, Kim ○, and Kim Jong-tae entered that “the appraised value of the instant real estate was 698,00,000 won, and the appraised value of the exchanged real estate was 572,00,000 won, and the difference was 125,00,000,0000 won (i.e., 698,00,000,000,0000,0000 won) (i.e., 698,00,000,0000,000 won) was paid to the Plaintiff on April 10, 2012.

C. On April 20, 2012, the transfer value of the instant real estate to the Defendant is assessed under the exchange contract.

The preliminary return of capital gains tax was made in 2012, which was calculated as the actual transaction price of 766, 00, 000, and 00 won.

(d)The defendant shall have the transfer value and acquisition value of the real estate in the case at the standard market price, respectively.

698, ○○○, ○○○○, 231, 30, and ○○○○○○○ (including additional tax) conducted an estimated investigation on January 3, 2013. On January 3, 2013, the Plaintiff imposed an imposition of KRW ○○○, ○○, and ○○○ (including additional tax) on the Plaintiff (hereinafter referred to as “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap 1, 3 through 6 (Evidence A 3 and 6 include each number), Eul

Each entry of evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The transfer price reported by the Plaintiff is the actual transaction price. The actual transaction price refers to the actual contract price in itself or at the time of the transaction, and it does not mean the market price reflecting the objective exchange value. The Plaintiff, Kim ○, and Kim Jong-si have traded after objectively calculating the exchange value of real estate, and even clearly settled the difference, the transfer price reported by the Plaintiff is the actual transaction price.

Even if the concept of market price is included in the actual transaction price for domestic affairs, the real estate in this case is assessed based on the officially assessed individual land price and the publicly notified amount by the Commissioner of the National Tax Service pursuant to Article 101 of the former Income Tax Act (amended by Act No. 12169, Jan. 1, 2014; hereinafter referred to as the "former Income Tax Act"), Article 167 (5) of the Enforcement Decree of the Income Tax Act (hereinafter referred to as the "Enforcement Decree of the Income Tax Act"), Articles 60 and 61 of the former Inheritance Tax and Gift Tax Act (amended by Act No. 12168, Jan. 1, 2014); thus, the transfer price reported by the Plaintiff also reflects the objective exchange value.

(2) There is no omission or error in the Plaintiff’s preliminary return. The Plaintiff’s legitimate preliminary return was made on the basis of the transfer value and acquisition value of the instant real estate as the actual transaction price.

There are no omissions or errors prescribed in Article 114 (2).

(3) There is no reason for the estimation and correction under Article 176-2(1) of the Enforcement Decree of the Act. The real estate of this case

An exchange transaction does not constitute "a case where there is no document evidencing the existence of a contract and the settlement of difference, or where there is no important part of it (Article 176-2 (1) 1 of the Enforcement Decree of the Act), and since the transfer value of the real estate and the exchange real estate is determined through the market price assessment under the former Income Tax Act, it does not constitute "a case where it is obvious that there is a false representation because it is not a person's involvement or there is no false representation (Article 176-2 (1)

(4) The taxation deferment effect that occurs when a market price is assessed based on the standard market price is naturally permissible under the current tax law system.

(5) If the exchange transaction of this case, which is a transaction between related parties, falls short of the market price, the denial of unfair practices should be applied instead of the estimation decision.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The actual transfer value of the pertinent asset, which serves as the basis for calculating the transfer income tax, refers to the value that the transferor transfers the asset at the time of the transaction and received as the price for the transfer and that is objectively perceived by the sales contract or other documentary evidence. Thus, in the case of the exchange of the transaction, the actual transfer value may be verified if the value of the object is a value exchange based on the objective value of the object by following the procedure for settling the difference in the appraisal value, etc., but if the difference is determined by an agreement between the parties without such procedure and the method of paying the difference, the actual transfer value shall not be confirmed if the difference is simply exchanged by the method of paying the difference (see, e.g., Supreme Court Decision 2010Du27592, Feb. 9, 2012).

(2) There is no dispute between the parties as to the fact that the market price of the instant real estate and the exchange real estate was not appraised at the time when the exchange contract was concluded between the Plaintiff, Kim ○○, and Kim Young-si. Article 101 of the former Income Tax Act and Article 167 (5) of the Enforcement Decree of the Act, which the Plaintiff cited, do not only have the right to decide whether to apply the above provisions for the calculation of capital gains in accordance with the provisions on wrongful calculation of capital gains. Thus, even if the Plaintiff, Kim ○, and Kim Young-chul prepared an exchange contract by calculating the market price of the instant real estate and the exchange real estate in accordance with the above provisions, this is nothing more than that of arbitrarily evaluating the value of the instant real estate and the exchange real estate.

Therefore, the Plaintiff’s preliminary return, which calculated only the transfer value, based on the standard market price, constitutes “the case where there is an error as provided by Article 114(2) of the former Income Tax Act.” Even if there exists a contract for exchange and settlement of difference, the real estate in this case constitutes “where there is no account book, sales contract, receipt, or other documents necessary to confirm the actual transaction value at the time of transfer or acquisition, or where there is no lack of material part, or where there is no material part, it cannot be confirmed at the time of transfer.” Since there is no dispute between the parties on the fact that there is no transaction example or appraisal value of the real estate in this case at the time of transfer, the disposition in this case was made by estimation according to the standard market price. The Plaintiff’s assertion is legitimate, and all of the Plaintiff’s assertion is without merit (see Supreme Court Decision 2009Du19465, Feb. 10, 201; Supreme Court Decision 209Du19465, Feb. 10, 2019).

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

shall be ruled.