2013west 3669

The acquisition value shall be corrected by applying the transaction example, appraisal value, conversion value, etc. in sequence through the estimated survey on the premise of omissions or errors.

The acquisition value is corrected by applying the transaction example, appraisal value, conversion value, etc. under the presumption of omission and error. Since the income tax law maintains the same only through the revision of items, the defendant cannot be deemed to have impaired legal stability and predictability by a arbitrary statutory interpretation without any legal basis.

Article 97 of the Income Tax Act

2014Gudan3399 Revocation of Disposition of Imposing capital gains tax by rectification.

AA

Head of the Employment Tax Office

The claim is dismissed for lack of reason.

June 12, 2014

June 19, 2014

1. The plaintiff's claim is dismissed.

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

The disposition taken by the Defendant to correct the OOO of the capital gains tax belonging to the year 2007 against the Plaintiff on May 20, 2013

The cancellation shall be revoked.

1. Details of disposition;

A. On February 3, 1989, the Plaintiff acquired an OOm2 (hereinafter referred to as “OOm2”) from among the OOm2 in BBCC forest and OOm2, but transferred it to DD Co., Ltd. on September 28, 2007. (B) On November 30, 2007, the Plaintiff reported and paid the transfer income tax on the instant land, and the transfer value is the Om2, which is the actual transaction value. The transfer value is the Om2, which is the conversion value on the ground that the evidentiary documents were destroyed by fire, and the acquisition value was the OOm2, which is the conversion value on the ground that the acquisition value of the instant land was calculated by calculating the acquisition value of the instant land as the OOOm2, which is equivalent to the OOm2 per m2,000 won, and the Defendant was dissatisfied with the Plaintiff’s appeal on May 20, 2013 to 201.

A. The plaintiff's assertion

(1) Main argument

The acquisition value for the calculation of gains on transfer under the income tax law shall be based on the actual transaction value, but if it is impossible to confirm the actual transaction value at the time of acquisition, it shall be based on the transaction example, appraisal value, and conversion value. Each of the above methods is stipulated on an equal and parallel basis, and there is no provision to be applied in sequence. Thus, it is just for the Plaintiff to calculate the acquisition value of the land in this case by the conversion value. The Defendant, without any legal basis, excluded the acquisition value by the transaction example

(2) Preliminary assertion

In light of the fact that each sales contract in the name of EE and FF, which the Defendant used as the basis for business example, is limited to the so-called "sale agreement" written in a lump sum for tax convenience, and the details, form, and content thereof, and in particular, the parties to each contract are different from that of the Plaintiff and the sales price, which is significantly different from the publicly assessed individual land price, etc., it cannot be viewed as a actual sales contract. Therefore, there is no "similar nature" that can be viewed as a sales case against the Plaintiff. The disposition in this case is unlawful since there is a defect in legal interpretation

B. Judgment on the main argument

(1) Relevant statutes

Article 97 of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006) provides that the actual transaction value shall be the acquisition value in the calculation of gains from transfer, but where it is impossible to confirm it, the acquisition value shall be prescribed by the Presidential Decree, and Article 114 (2) and (4) provides that where any omission or error exists in a taxpayer's return on the tax base of transfer income and tax amount, the head of the competent tax office, etc. shall correct it according to the value under Article 97, etc. In case where it is impossible to recognize or confirm the actual transaction value at the time of acquisition of the relevant asset by books or other documentary evidence, the acquisition value may be determined or revised by making an estimated investigation according to the business example, appraisal value, conversion value, or standard market value, etc. In case where Article 176-2 (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008) provides that the acquisition value shall be determined or revised by 13 months before or after the acquisition value of the relevant asset.

(2) Determination

(A) In light of the following circumstances, the Defendant’s rectification of tax base and tax amount based on the estimation survey of the instant land is justifiable and cannot be deemed as contrary to the principle of no taxation without the law.

1) Under the income tax law, the calculation of the acquisition value for the calculation of gains on transfer shall be based on the actual transaction value in principle, but where it is difficult to confirm the objective actual transaction value based on the evidential documents, etc., the standard value of each transaction example, appraisal value, and conversion value shall be determined by the method in lieu thereof. In full view of the legislative intent, history, contents of the above provision, and the fact that the method of calculating the acquisition value in lieu of the actual transaction value is specified in the order that the actual transaction is close to the "amount objectively and objectively."

2) Furthermore, even if the value of each of the above criteria is parallel, there is no ground to view that the conversion value reported by the Plaintiff as the acquisition value of the instant land is calculated by appropriately applying the "standard market value" as prescribed by the Enforcement Decree of the Income Tax Act. Rather, according to the evidence No. 3, it is reasonable to view that there was an omission or error in the content of the report, since the Plaintiff’s acquisition of the instant land was publicly announced since 1990, and repeated increase or decrease was made from 1990 square meters to 00 square meters per 2007 square meters per 1997, since the Plaintiff’s acquisition of the instant land, and it was found that there was an omission or error in the content of the report.

3) Therefore, as long as the amendment of the Income Tax Act at the time of the transfer of the instant land was made on February 22, 2008 as the Enforcement Decree thereof, the Defendant, without any legal basis, remains intact in the revised income tax law, as long as the contents of the previous provisions are maintained only through the modification of the items, the Defendant’s arbitrary legislation without any legal basis.

It cannot be deemed that the instant disposition was rendered by impairing legal stability and predictability.

(B) Ultimately, this part of the Plaintiff’s assertion is without merit.

C. Judgment on the conjunctive assertion

(1) In confirming the actual transaction price, the seal of approval prepared by the parties to the transaction and affixed the seal of approval to the head of the Si/Gun, etc. shall be presumed to have been prepared according to the sales contract between the parties, barring any special circumstance, and the fact that the contract was prepared differently from the actual transaction price shall be proved by the claimant (see, e.g., Supreme Court Decision 93Nu2353, Apr. 9, 193). (2) However, each of the following circumstances are acknowledged as adding evidence Nos. 5 through 10, No. 2-1, and No. 2-1, and No. 2-2, and each of the above circumstances are as follows: (i) BBCCOO’s land including the instant land was originally owned by GGG; and (ii) there is no difference between the sale price and the sale price of the pertinent land before and after September 10, 1988, and the sale price of the pertinent land was transferred to EE, FF, etc.; and (iii) there is no difference between the sale price of forest and forest land.

Since the Defendant calculated the acquisition value by calculating the acquisition value, there is no error of law that led to the disposition of this case, this part of the Plaintiff’s assertion is without merit.

3. Conclusion