In case of the same standard market price at the time of transfer and acquisition, methods

Since there is no assertion that the apartment and the transfer margin fall under the reasons for calculating the actual transaction price, it can not be calculated according to the standard market price. Therefore, the calculation by the method of the standard market price of apartment at the time of transfer is lawful.

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

1. The plaintiff's claim is dismissed. 2. The costs of lawsuit are assessed against the plaintiff.

1. Details of the instant disposition

원고가 1991.4.5. 소외 이ㅇㅇ으로부터 서울 ㅇㅇ구 ㅇㅇ동 ㅇㅇ의 1, 같은동 ㅇㅇ의 12, 같은동 ㅇㅇ의 22 및 같은동 ㅇㅇ의 23 지상 ㅇㅇ아파트 ㅇ동 ㅇ호 대지 41.896㎡, 건물 84.55㎡(이하 이 사건 아파트라 한다)를 취득하였다가 이를 1992.9.29. 소외 정ㅇㅇ에게 양도한 데 대하여, 피고가 1994. 4. 16. 원고에 대하여 1994년 4월 수시분 양도소득세 금21,081,740원의 부과처분(이하 이 사건 처분이라 한다)을 한 사실은 당사자 사이에 다툼이 없다.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

원고는 1991.4.5. 소외 이ㅇㅇ으로부터 이 사건 아파트를 금1억4천만원에 매수하여 1992.9.29. 소외 정ㅇㅇ에게 이를 금1억3천만원에 매도하였고, 한편 이 사건 아파트의 기준시가는 원고가 이를 취득할 당시나 양도할 당시 금1억4천만원으로 동일하므로 이 사건 아파트의 양도에 관하여 실지거래가액에 의하거나 기준시가에 의하거나 전혀 양도차익이 발생하지 않았음에도 불구하고 피고가 이 사건 처분을 한 것은 위법하다.

(b) Related statutes;

Article 23 (4) of the Income Tax Act (amended by Act No. 4661, Dec. 31, 1993; hereinafter the same shall apply) provides that the standard market price at the time of transfer of the relevant land or building shall be the transfer price: Provided, That where the Presidential Decree prescribes that the transfer price shall be based on the actual transaction price; and Article 45 (1) 1 (a) of the same Act provides that the acquisition price, which is the necessary expenses to be deducted from the transfer price in calculating transfer margin, shall be the standard market price at the time of acquisition of relevant assets: Provided, That where the Presidential Decree prescribes that the actual transaction price required for acquiring such assets shall be the actual transaction price at the time of acquisition; Article 170 (4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 14083, Dec. 31, 1993; hereinafter the same shall apply) provides that the person who prepares and transfers real estate under the same Article 23 (4) 1 and the proviso of Article 45 (1) 1 (a) of the Act shall be transferred within 2 years after transfer or transfer.

Meanwhile, Article 115(1)1-2 and (3) of the Enforcement Decree of the Local Tax Act provide that the standard market price of a building shall be the value based on the taxation standard market price under Article 80 of the Enforcement Decree of the Local Tax Act. In case where the standard market price at the time of transfer and that at the time of acquisition are identical, the value calculated by the method determined by the Ordinance of the Ministry of Finance and Economy in consideration of the holding period of the building in question and the increase rate of the standard market price at the time of the acquisition shall be the standard market price at the time of the transfer, and Article 56-5(2) of the Enforcement Decree of the same Act provides that the value calculated by the method determined by the Ordinance of the Ministry of Finance and Economy in Article 115(3) of the Decree shall be the following:

C. Determination

In light of the following facts: (a) the Plaintiff acquired the apartment of this case on April 5, 1991 and sold it on September 29, 192; (b) the standard market price of the apartment of this case as of September 29, 1992 is 140 million won (public notice September 1, 1990). The above standard market price is 70 million won (public notice June 24, 1989). In the disposition of this case, the Defendant considers the transfer value of the apartment of this case as 2.1 billion won and the acquisition value as 1.4 billion won and there is no counter-proof; (c) the Defendant calculated the transfer value as 1.5 billion won and 75 billion won as 40 million won as 40 million won and 1.5 billion won as 70 million won and 75 billion won as 40 million won and 750 million won as 70 million won as 50 million won or more under the Enforcement Decree of the Income Tax Act after the Plaintiff transferred the apartment of this case.

3. Conclusion

Therefore, the plaintiff's claim is without merit, and it is dismissed, and the costs of lawsuit are assessed against the plaintiff who has lost. It is so decided as per Disposition.