Seocho 208west 3304 ( November 28, 2008)

Where the value of a building is unclear, the transfer margin shall be calculated pro rata to the standard market price.

In light of the fact that a building has been deteriorated for not less than 30 years and the purchaser immediately removed the building after purchase, the value of the building seems to have never been the value of the building, the value of the land and the building shall be deemed to have been divided into the value of the building

The contents of the decision shall be the same as attached.

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 126,066,450 against the Plaintiff on January 23, 2008 shall be revoked.

1. Details of the disposition;

가. 원고는 1980. 4. 4. 김○○, 정ㅁㅁ와 공동으로 취득한 서울 ○○구 ○○동 15-4 대지 806.7㎡ 및 2층 공장 및 주택(이하 '이 사건 부동산'이라 한다) 중 1/3 지분(이하, '이 사건 부동산 지분'이라 한다)을 2004. 4. 9. 주식회사 AAA산업에게 양도한 후 양도가액을 토지 866,000,000원, 건물 150,750,000원, 합계 1,016,750,000원으로, 취득가액 토지 321,702,863원, 건물 365,608,409원, 합계 687,311,272원으로 각 산정하여 원고에게 양도소득세를 신고하였다.

B. After conducting an investigation of capital gains tax on November 2007, the Defendant calculated the transfer value as KRW 1,013,763,368, building 2,986,632, total of KRW 1,016,750,00 in land, and calculated the acquisition value as KRW 413,972,160, building 7,250,163, total of KRW 421,222,323 in land, and issued the instant disposition imposing and notifying the Plaintiff of KRW 126,06,450 on January 23, 2008.

[Reasons for Recognition] Evidence No. 1, Evidence No. 2-1, Evidence No. 2-2, Evidence No. 3-1, 2-2, Evidence No. 1-2, Evidence No. 2-4, Evidence No. 6-1, and 2-2, Evidence No. 6-1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Inasmuch as a sales contract was prepared by dividing the transfer value of the real estate in this case into the building and the land at the time of selling the share of this case, and the sales contract was prepared by dividing it into the building and the land, the transfer value of the share of this case at the time when the Plaintiff reported the transfer income tax into the actual transaction value, and the amount calculated by converting it according to the standard market price ratio based on the amount of the above sales contract, which is the actual transaction value, is legitimate; however, although the Defendant did not recognize each sale price of the land and the building stipulated in the above sales contract without any particular ground, and the sale price of the land and the building is unclear, the transfer value is calculated by dividing the total sale value of the land and the building by the ratio of the standard market price of the land and the building according to the ratio of the total sale price of the land and the building, and then the acquisition value is calculated by converting it into the standard market price based on this value, the disposition of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) 원고는 1980. 4. 4. 김○○, 정ㅁㅁ와 공동으로 이 사건 부동산을 취득하였다가 2004. 4. 9. 그 명의의 이 사건 지분을 주식회사 AAA산업에 양도하였는데, 당시 작성한 매매계약서는 토지는 866,000,000원, 건물은 150,750,000원에 매도하는 것으로 토지와 건물로 구분되어 2장으로 작성되었다.

(2) If the total sale price of the instant real estate is divided based on the standard market price of KRW 1,016,750,000, the land is KRW 1,013,763,368 for the instant real estate, and KRW 2,986,632 for the building, which is larger than the amount indicated in the said sales contract. Of the instant real estate, at least 30 years have passed since the building was approved for use on June 30, 1972, and the buyer removed the building on April 26, 2004 for the first time after the building was purchased.

[Reasons for Recognition] Evidence No. 1-2-1, Evidence No. 2-2, Evidence No. 3-1, 2-2, Evidence No. 1-1, 3-2, Evidence No. 3-1, 2-2, Evidence No. 5-1, 2, and Evidence No. 7, and the purport of the whole pleadings

D. Determination

According to Article 100(1) and (2) of the Income Tax Act (amended by Act No. 7837, Dec. 31, 2005; hereinafter the same), where the transfer value or acquisition value is calculated based on the actual transaction price in calculating gains, if a person liable to pay capital gains tax submits a sales contract for the acquisition and transfer, transaction confirmation, certificate of personal seal impression, etc. as documentary evidence concerning actual transaction price, the tax authority shall calculate gains from transfer based on the actual transaction price on each of the above documentary evidence unless there are special circumstances such as that each of the above documentary evidence was prepared differently from the actual transaction price (see Supreme Court Decision 95Nu3183, Jun. 25, 1996); however, even if the transfer value or acquisition value is calculated based on the actual transaction price, if the land, building, etc. is acquired or transferred together and it is unclear that the price of the land, building, etc. is divided based on the actual transaction price, etc. as prescribed by the Presidential Decree, considering the standard market price at the time of acquisition or transfer.

In light of the circumstances revealed in the above facts, i.e., ① the fact that the above building has been built for 30 years or more and the buyer removed immediately immediately after the purchase, it appears that there was almost little value of the above building; ② the purchaser appears to have no reasonable ground to purchase the above building with a large amount of KRW 150,750,000, and ② in calculating transfer income tax based on the sale price of land and building stated in the sales contract and the sales price of land and building based on the standard market price of land and building, the transfer income tax amount cannot be ruled out to have been prepared by dividing the sale contract of land and building with the purchaser’s cooperation, regardless of the actual transaction details, in order to save the transfer income tax, and there is no possibility that the Plaintiff prepared a separate sale contract of land and building with the purchaser’s intention to reduce the burden of transfer income tax, etc., and it is difficult to believe that the entire sale price of the above building was a total sale price of each building to be determined by the sale price of each of the above real estate.

Therefore, it is legitimate that the Defendant’s share in the instant real estate was transferred en bloc and the distinction between the transfer value by each asset is unclear. Furthermore, according to the method as stipulated in Article 100(2) of the Income Tax Act and Article 166(4) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705, Feb. 19, 2005; hereinafter the same), each transfer value is calculated by calculating the acquisition value by the method of converting the total sale value of the instant real estate based on the standard market price according to the method as stipulated in Article 176-2(2)2 of the Enforcement Decree of the Income Tax Act and calculating the legitimate transfer income tax following the transfer of the instant real estate share based on the standard market price according to the method as stipulated in Article 176-2(2)2 of the Enforcement Decree of the Income Tax Act, such amount is identical to the instant disposition. Therefore, the instant disposition is legitimate, and the Plaintiff’s assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim seeking revocation of the disposition of this case is dismissed as it is without merit.