[1] Whether the amount of capital gains tax calculated by the standard market price may exceed the gains on transfer calculated by the actual transaction price (negative)

[2] The case holding that even if the transfer margin calculated based on the standard market price exceeds the transfer margin calculated based on the actual transaction price, the disposition imposing transfer income tax is not unlawful

[1] Articles 96 (1) 6 (see current Article 96 (2) 6), 97 (1) 1, and 100 (1) of the former Income Tax Act (amended by Act No. 6292, Dec. 29, 200) / [2] Articles 96 (1) 6 (see current Article 96 (2) 6), 97 (1) 1, and 100 (1) of the former Income Tax Act (amended by Act No. 6292, Dec. 29, 200)

[1] Supreme Court Decision 96Nu4022 delivered on December 10, 1996 (Gong1997Sang, 424) Supreme Court Decision 96Nu860 delivered on February 11, 1997 (Gong1997Sang, 805) Supreme Court Decision 2001Du5026 delivered on May 30, 2003 (Gong2003Ha, 1480)

Plaintiff

head of Sung Dong Tax Office

Seoul High Court Decision 2005Nu7732 delivered on September 7, 2005

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. As to the actual acquisition value of the real estate of this case

Examining the reasoning of the judgment below in light of the records, the court below, based on its adopted evidence, found that the plaintiff submitted a fake contract and confirmation document between the non-party 1 and the non-party 2 with the purchase price of KRW 290 million as evidentiary data, and reported the above purchase price as actual acquisition value. However, the non-party 3, who arranged the sale and purchase of the real estate at the request of the non-party 1 and 2, reported the sale and purchase of the real estate of this case to the plaintiff and responded to the plaintiff, and the plaintiff should be recommended to purchase the real estate of this case and delivered the purchase price of KRW 440 million between the plaintiff and the non-party 1 and the non-party 2 on May 17, 191, the court below found that the non-party 1 and the non-party 2 violated the rules of evidence collection of KRW 380 million as of June 12, 199; the remaining purchase price of KRW 400 million as of the date of deducting the balance from the contract deposit.

2. Regarding the misapprehension of a legal principle as to the calculation of transfer margin by standard market price

According to the reasoning of the judgment below, on December 15, 200 after the plaintiff purchased the real estate of this case from Nonparty 1 and 2 as above, the court below acknowledged the fact that the plaintiff transferred the real estate of this case to Nonparty 4 on December 15, 200, the plaintiff calculated the transfer income tax of this case as the actual transaction value (acquisition value of KRW 290 million, transfer value of KRW 345 million), and paid KRW 6,531,240 won as the transfer income tax on February 6, 2001. The defendant issued a disposition of this case on June 21, 2003 on the premise that the transfer value of the real estate of this case is KRW 49,342,700,000,000,000,000,000 won, which is 400,000,0000 won or more based on the actual transfer value of the real estate of this case, and determined that the transfer value of the real estate of this case is 4 billion,00,0,0,00,0,0,00,00,000.

However, in a case where a transfer margin is calculated based on the standard market price, the amount of tax calculated based on it cannot exceed the scope of the transfer margin based on the actual transaction price (see, e.g., Supreme Court Decisions 96Nu4022, Dec. 10, 1996; 96Nu860, Feb. 11, 1997; 2001Du5026, May 30, 2003). The transfer margin per se calculated based on the standard market price cannot exceed the scope of the transfer margin based on the actual transaction price.

Nevertheless, the lower court determined that the instant disposition is unlawful solely on the ground that the transfer margin premised on the instant disposition exceeds the transfer margin of KRW 50 million based on the actual transaction value, by misapprehending the legal doctrine on the calculation of transfer margin based on the standard market price under the Income Tax Act, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)