Daegu District Court 2008Guhap756 (No. 11, 2009)

With respect to the real estate transferred before December 31, 2006, the standard market price shall be applied unless the evidence is provided and reported.

The standard market price should be applied to the calculation of gains on transfer of a building transferred before December 31, 2006, since the actual transaction price at the time of the acquisition of the building and the evidential documents therefor have not been submitted.

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

Article 94 (Scope of Transfer Income Tax)

Article 97 (Calculation of Necessary Expenses for Transfer Income Tax)

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance court is revoked. The defendant's disposition of imposing capital gains tax of KRW 59, 317, and 800 on behalf of the plaintiff on March 15, 2007 shall be revoked.

1. Circumstances of the disposition;

가. 원고는 2006. 6. 20. ●●시 ●●동 72-6 공장용지 4, 770㎡(이하 '이 사건 토지' 라 한다) 및 지상 ① 시멘벽돌조 슬레이트지붕 단층공장 1, 624.98㎡, ② 시멘벽돌조 슬 레이트지붕 단층기숙사 115.5㎡' ③ 시멘벽돌조 슬래브지붕 단층수위실 17.01㎡, ④ 시멘블록조 슬레이트 지붕 단층주택 70.56㎡, ⑤ 시땐블록조 단층주택 68.4㎡, ⑥ 철근콘 크리트조 슬레이트 지붕 단층공장 672㎡, ⑦ 철근콘크리트조 슬레이트 지붕 단층공장 202.12㎡(이하 차례로 '이 사건 ① 건물 내지 ⑦건물이라고 하고, 모두 합하여 '이 사건 건물'이라 한다)를 매매대금 3, 895, 000, 000원에 ▢▢홀딩스 주식회사(이하 '▢▢홀딩스' 라 한다)에 주택건설용지로 양도하였다.

B. On August 31, 2006, the Plaintiff appears to have obtained the date of acquisition to the Defendant on December 31, 198 (the date of December 31, 1998 on the statement of transfer income statement). With respect to the land in this case, the acquisition value (491,064,240 won) and transfer value (2,132,190,000 won) shall be calculated based on the standard market price. The acquisition value of the building in this case shall be 299,295,522 won (i.e., 150,59,59,318 won + 7,672,676 won + 141,023,528 won on the statement of transfer income statement) and the transfer value shall be calculated as 0 won based on the actual market price, and the transfer value shall be calculated as necessary expenses for the land in this case, the transfer income tax shall be calculated as 14, 297, 2987, 7978.7.8

C. On March 15, 2007, the Defendant reviewed the scheduled return on the Plaintiff’s transfer income, and then, in case where only the actual transaction value at the time of transfer is confirmed and it is impossible to recognize or confirm the actual transaction value at the time of acquisition, the acquisition value is only allowed to be calculated based on the transaction example value, appraisal value, conversion value at the time of acquisition, or the value applying the standard market price at the time of acquisition. Thus, the transfer value shall not be determined based on the standard market price on the sole ground that it cannot be recognized or confirmed as the actual transaction value at the time of acquisition. In addition, in calculating the transfer margin, the Plaintiff may choose whether the transfer value is based on the actual transaction value or based on the standard market price. Thus

(3) In the case where it is not possible to recognize or confirm the actual transaction value at the time of transfer or the actual transaction value at the time of acquisition according to the purport of Article 114 (5) of the Act and Article 176-2 (3) of the Enforcement Decree of the Act, if it is impossible to recognize or confirm the actual transaction value at the time of transfer or acquisition, it is necessary to make an estimated investigation based on the case value, appraisal value, conversion value or standard market value, etc. Accordingly, the transfer value of the building at the time of the acquisition of the building at the time of the case should be determined based on the estimation and investigation, so the transfer value of the building at the time of the acquisition shall be 0 won or 0 won and the transfer value shall be calculated based on the standard market value, but the disposal of the building

(4) According to the provisions of General Rule 97-10 of the Income Tax Act amended on April 8, 1997, where land and buildings are acquired together and only land is transferred for convenience of land use, and where gains on transfer are calculated based on the actual transaction price, the balance obtained by subtracting the acquisition value of the removed building from the sum of the acquisition value of the removed building and the removal cost shall be the necessary expenses of the transferred property, and where gains on transfer are calculated based on the standard market price, the standard market price at the time of the acquisition of the removed building shall be included in the necessary expenses. In revising gains on transfer of the building of this case, the transfer value shall be 0 won, and the standard market price at the time of the acquisition of the building of this case shall be included in the necessary expenses, and the gains on transfer shall be calculated by including the standard market price at the time of the acquisition of the building of this case in the necessary expenses

(5) The Defendant calculated the acquisition value of the instant case’s land as KRW 491,061,960 in the disposition of the instant case. However, the standard market price at the time of acquisition of the instant land is KRW 491,064,240 in the disposition of the instant case, and thus, is unreasonable.

(6) The transfer income tax base and the document of disposition for correction of tax amount submitted by the defendant

Since there is no basis for calculating the acquisition value of a building, the instant disposition is unlawful.

(b) Related statutes;

Article 94 (Scope of Transfer Income Tax)

Article 97 (Calculation of Necessary Expenses for Transfer Income Tax)

(c) Fact of recognition;

(1) On February 28, 1984, the Plaintiff purchased the land and the building in this case, and the Plaintiff paid for the registration of transfer of the ownership in the name of the Plaintiff on December 31, 1988.

(2) On March 10, 204, the Plaintiff entered into a sales contract with △△ Housing Co., Ltd. (hereinafter referred to as △△△ Housing Co., Ltd.) to pay 3,463,00,000 won in lieu of the land and the building in this case and to pay 176,750,00 won in the contract amount of 8,40,000 won in the same year, 16,000 won in the same year, 1,000 won in the same year, 518,750,000 won in the same year, but △△△△ Housing Co., Ltd. did not pay only the contract amount and did not pay the balance in the middle.

(3) 원고는 2006. 6. 12. ▢▢홀딩스와 사이에, 원고가 ◇◇주택으로부터 받은 계약금 176, 750, 000원을 매매대금의 일부로 인정하는 조건으로 매매대금을 3, 895, 000, 000원으로 정하여 이 사건 토지와 건물에 대한 매매계약을 체결하였고, 그때 계약금 2억 원은 2006. 6. 13.까지 지급하고, 잔금 3, 518, 250, 000원은 2006. 7. 11.까지 지급하되, 잔금 중 2억 원은 이 사건 건물 중 임차인들이 인도하지 않고 있는 건물 부분에 대한 명도 이행보증금으로 하여 원고와 ▢▢홀딩스 명의로 된 은행계좌에 입금하기로 하였다.

(4) ▢▢홀딩스는 2006. 6. 20. 이 사건 건물의 명도 이행보증금 2억 원을 원고와 ▢▢홀딩스의 공동 명의의 계화에 입금하였고, 원고는 2007. 1. 4. 이 사건 건물의 임차 인 박○자, 김○도, 배○숙 등을 상대로 한 대구지방법원 2006가단86174호 건물명도 등 청구소송에서 승소판결을 받았으며, ▢▢홀딩스는 2007. 9. 27.경 이 사건 건물을 명도받아 그 무렵 이 사건 건물을 철거하였다.

(5) On June 12, 2006, when the Plaintiff entered the content that “the total sale price of the building 0,000 won per land shall be calculated as 2.7 million won per land” in the preliminary return of the tax base of transfer income, the building was attached to the revised contract on June 12, 2006 (hereinafter referred to as “the instant contract”) and there was no evidentiary materials showing the transaction price of the allotted facilities for the acquisition of the building.

한편,▢▢홀딩스는2007. 5. 7. 피고에게,원고와▢▢홀딩스사이에2006. 6. 12.

작성된 '변경계약서'를제출하였는데,위 '변경계약서'에는이사건계약서와달리 '건물가는0으로,총매매대금은토지평당270만원으로산정함'이라는내용이기재되어있지않고,▢▢홀딩스가2006. 6. 20. ●●시장으로부터검언을받은매매계약서에는특약사항으로 '소유권이전후건물멸실예정이므로건물가액은없는것으로한다'는내용이기재되어있다.

[인정근거] 다툼 없는 사실, 갑 제3호증의 3, 4, 5, 갑 제4호증의 2, 갑 제8호증, 갑 제9호증의 1, 2, 갑 제10호증의 1 내지 5, 을 제2호증의 1, 2, 제1심 법원의 ▢▢홀딩스 주식회사에 대한 사실조회결과 변론 전체의 취지

D. Determination

(1) The plaintiff's first proposal is replaced by the plaintiff's first proposal

Article 96 (1) of the Act provides that the transfer value of assets under each subparagraph of Article 94 (1) of the Act shall be the actual transaction value between the transferor and the transferee at the time of transfer of the relevant assets, and Article 94 (2) of the Act provides that where assets under Article 94 (1) 1 and 2 of the Act are transferred not later than December 31, 2006, the transfer value of the assets shall be the standard market value at the time of transfer of the relevant assets except for the cases falling under any of the following subparagraphs, notwithstanding the provisions of paragraph (1), and Article 96 (1) of the Act provides that the transfer value of the assets shall be the standard market value at the time of transfer at the time of transfer of the relevant assets, and Article 97 (1) of the Act provides that the transfer value shall be the actual transaction value at the time of transfer and the report to the head of the district tax office having jurisdiction over the place of tax payment by the due date of final return under Article 110 (1) of the Act shall be the necessary expenses to be deducted from the transfer value:

In this case, as to whether the actual transaction price at the time of the transfer of the building in this case is confirmed, the following facts revealed in the above recognition. In other words, even if it is impossible for the Plaintiff to divide the purchase price by adding up the price of the land and building in the contract with △△ Housing, the actual transaction price of the building in this case may be determined in accordance with the above provision.

However, even if it is possible to calculate the actual transaction value of the building of this case at the time of transfer pursuant to Article 100(2) of the Act, in order to calculate the transfer margin based on the actual transaction value, the Plaintiff shall report the actual transaction value as at the time of acquisition of the building of this case by the deadline for final return. As seen earlier, the Plaintiff did not submit the actual transaction value as at the time of acquisition of the building of this case by the above deadline, and as such, in calculating the transfer margin of the building of this case transferred before December 31, 2006, it shall be based on the standard market price pursuant to Article 96(2) of the Act, and if the transfer value of the building of this case is based on the standard market price, the acquisition value shall be subject to the standard market price pursuant to Article 100(1)

(2) The plaintiff's second proposal is replaced by the plaintiff.

In light of the provisions of Articles 96(1), 96(2), and 97(1) of the Act, where assets such as land, building, etc. under Article 94(1)1 and 2 of the Act are transferred until December 31, 2006, the transfer value of such assets shall be based on the standard market price at the time of transfer, except as otherwise provided in each subparagraph of Article 96(2) of the Act. As seen earlier, the Plaintiff failed to report the actual transaction price at the time of acquisition of the building of this case and the evidential documents therefor by the due date for final return, and the Plaintiff did not meet the requirements of Article 96(2)6 of the Act and did not otherwise verify the actual transaction price at the time of acquisition, and thus, the transfer value and acquisition value of the building of this case shall be based on the standard market price. Therefore, the Plaintiff’s assertion on this part is without merit

(3) The plaintiff's third proposal is substituted by the plaintiff

According to Article 114(4) of the Act, where the transfer value or acquisition value of the building of this case can be determined or corrected based on the transaction example, appraisal value, conversion value, or standard market value pursuant to Article 114(5) of the Act, a preliminary return or final return on the tax base of transfer income pursuant to Articles 96(1), 96(2)6 and the main sentence of Article 97(1)1(a) of the Act is made, that is, where the transfer value of the building of this case is actually traded between the transferor and transferee at the time of transfer of the relevant asset, or where the transferor files a return on the actual transaction value at the time of transfer and acquisition along with evidential documents at the time of transfer. As seen earlier, the building of this case should be calculated on the basis of the market price as at the time of acquisition of the building of this case because the Plaintiff fails to report the actual transaction value at the time of transfer along with evidential documents, and therefore, the transfer margin of this case does not constitute a case where the transfer value or acquisition value should be determined or corrected by estimated.

(4) The plaintiff's fourth note is replaced by the plaintiff's fourth note.

살피건대, 소득세법 기본통칙 97-10의 규정은 토지와 건물을 함께 취득한 후 토지의 이용 편의를 위하여 당해 건물을 철거하고 토지만을 양도하는 경우에 건물의 취득가액 과 철거비용 등을 필요경비에 산입하여 양도차익을 산정하여야 한다는 취지의 규정인 데, 원고가 ▢▢홀딩스와 사이에 이 사건 건물을 철거하고 토지만을 양도하기로 매매 계약을 체결하였음을 인정할 증거가 없어 이 사건 건물의 양도가액을 '0원'으로 할 수 는 없다고 할 것이므로, 원고의 이 부분 주장 역시 이유 없다.

(5) The plaintiff's fifth master plan is replaced by the plaintiff

(A) As a procedure for determining the tax liability to be borne by a taxpayer under tax-related Acts, the tax authority’s calculation method, etc. in the process of determining the tax base and amount of tax by specifically calculating the tax base and amount of tax, even if the tax amount imposed and notified as such is the result of not exceeding the scope of the justifiable tax to be borne by the taxpayer in question, and if the wrong method does not vary in the scope of the tax base and the reason for disposition, it does not mean that the tax disposition in question is unlawful and revoked (see, e.g., Supreme Court Decision 91Nu10695, Jul. 28, 192). In a tax revocation lawsuit, the subject of review is the existence of the taxable value determined by the tax authority, and the subject of review is the existence of the taxable value determined by the tax authority, and the parties to the lawsuit may claim a trial on the legitimacy of the taxation by submitting all the materials submitted until the closing of argument at the trial court (see, e.g., Supreme Court Decision 2003Du12615, May 14).

(B) Article 164(4) of the Enforcement Decree of the Act on the Public Notice of Values and Appraisal of Real Estate provides that the standard market price at the time of acquisition of land before a public notice of the publicly announced individual land price on August 30, 1990 shall be the price calculated by dividing, by two, the sum of the standard market price at the time of its acquisition x the officially announced individual land price ± the sum of the standard market price as at August 30, 1990 and the immediately preceding determined standard market price. In this case, the standard market price refers to the standard market price under the former Local Tax Act which was amended by Act No. 4995.

In this case, as of January 1, 1990, the officially assessed individual land price as of January 1, 1990 for the land of this case is 210,00 won, 27,60 won for the current standard market price as of August 30, 1990, and 60,400 won for the current standard market price as of August 30, 1990, and 52,200 won for the standard market price as of August 30, 1990 is not a dispute between the parties. Thus, when calculating the standard market price as of the time of acquisition of the land of this case, 491,064, 298 won (4,770 square metersx 210,00 wonx 27,600 won + [60,400 won + 52,200 won]].

(C) Article 164(5) of the Enforcement Decree provides that the standard market price at the time of acquisition of a building, which was acquired before the notice of the standard market price under Article 99(1)1 (b) of the Act, shall be the value calculated by the "value calculated by the standard rate publicly notified by the Commissioner of the National Tax Service in consideration of the year of acquisition, year of new construction, structure and lifespan of the building in question, etc., x the standard market price

According to Eul evidence No. 4, the standard market price at the time of the acquisition of the building of this case calculated by the defendant at the time of the disposition of this case is KRW 186,761,348, the standard market price at the time of legitimate acquisition is KRW 185,879,540, and the specific details are as follows (2) even though the year of new construction of the building of this case was 1974, the defendant calculated the year of new construction of the building of this case by applying the year of the disposition of this case to 1975).

(D) As above, the standard market price at the time of the acquisition of the land of this case is KRW 491,064,298. The standard market price at the time of the acquisition of the building of this case is calculated as KRW 185,979,540. If a reasonable tax amount is calculated according to the standard market price at the time of the transfer of the land of this case and the building of this case according to the standard market price at the time of the transfer of the land of this case, it shall be KRW 59,607,086, as indicated in the "justifiable Tax Amount in the attached Table" column. Since the tax amount upon the disposition of this case is below the legitimate tax amount of KRW 59,317,80, the plaintiff's

(6) The plaintiff's fifth note is replaced by the plaintiff.

Article 9 (1) of the National Tax Collection Act provides that when the head of a tax office or the head of a Si/Gun intends to collect national taxes, he/she shall issue to the taxpayer a written notice specifying the taxable year, tax item, tax amount, basis for calculation, deadline for payment, place of payment, and place of payment of the national tax. Article 114 (6) of the Act and Article 177 (1) of the Enforcement Decree provide that when a resident determines or revises the tax base of transfer income and tax amount, he/she shall enter the tax base, tax rate, tax amount and other necessary matters in the written notice and notify them.

In light of the purport of the evidence No. 1-1 and the entire purport of the pleading, the defendant can recognize the fact that he notified the plaintiff by clarifying the taxable year, tax item, tax base, tax amount, and the basis for calculation of the tax amount in the notice of tax payment at the time of the disposition of the case, so the defendant should notify the plaintiff of the lawful tax payment notice, and even if he did not clarify the basis for calculating the acquisition value of the building of the case, it is not illegal in the procedure of the disposition of the case, so there is no reason for the plaintiff's assertion.

3. Conclusion

If so, the plaintiff's claim for objection case should be dismissed without reason, and the judgment of the court of first instance is identical to that of the court of first instance, and the plaintiff's appeal is without reason, so it is decided to dismiss it.