Seoul Administrative Court 2009Gudan12009 (20103.02)

Seocho 208west 1661 (Law No. 25, 2009)

Where the subject matter of exchange is evaluated and recorded voluntarily, it shall not be deemed the actual transaction price.

Where the difference in the exchange is entered in the exchange contract by arbitrarily evaluating the value of the subject matter of exchange, the method of estimated investigation according to the order of the amount of transaction example and appraisal shall not be recognized or confirmed. In this case, the subject of the estimated investigation shall be the transfer assets other than the acquired assets of exchange.

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

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1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The Defendant’s imposition of capital gains tax of KRW 627,089,010 on February 5, 2008 and KRW 62,708,90 on resident tax of KRW 620,123,460 on resident tax of KRW 320,123,460 and KRW 32,012,340 on resident tax of KRW 204 shall be revoked.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant is revoked, and the plaintiff's claim corresponding to the part of the judgment of the court of first instance is dismissed (the part of the claim for revocation of the resident tax disposition among the lawsuit of this case was dismissed in the first instance court, and the plaintiff did not appeal against this.

쇠鹬 쇠鹬 3000 쇠鹬 3000

1. Quotation of judgment of the first instance;

당원이 이 사건에 관하여 설시할 이유는, 제1심 판결문 제3면 제7행 괄호안 끝에 "교환차액 2억 5,000만 원"을 추가하고, 제5면 제13, 18행의 각 "정AA"을 각 "정BB"으로, 제5면 제17행의 "지급받기로"를 "지급하기로"로, 제7면 제17행의 "△△ 모첼" 을 "△△ 모텔"로 각 고치며, 제1심 판결 이유 부분 제2의 다항 기재 부분(제8면 제7행부터 제15면 제5행까지)을 아래 제2항과 같이 고쳐 쓰는 이외에는 제1심 판결 이유 기 재와 같으므로, 행정소송법 제8조 제2항, 민사소송법 제420조에 의하여 이를 인용한다.

2. Judgment of party members

A. Whether the first disposition of this case is lawful

(1) The transfer value of assets pursuant to Article 94(1)1 of the former Income Tax Act (amended by Act No. 7120, Jan. 29, 2004; hereinafter “the Act”) shall be based on the standard market price at the time of transfer of the assets: Provided, That where the real estate is transferred within one year after its acquisition, the transfer value shall be calculated on the basis of the actual transaction value in exceptional cases where the transferor reports the actual transaction value at the time of transfer and at the time of acquisition to the tax office having jurisdiction over the place of tax payment by the deadline for filing a final return along with evidential documents (Article 96(1)4 and 6 of the Act

In this case, the actual transaction value refers to the value received by the transferor as the price for the transfer of the relevant asset at the time of the transaction, which is objectively accepted by the sale contract or other documentary evidence. Thus, if the transaction subject to capital gains tax is a simple exchange, the actual transfer value cannot be confirmed. However, in the case of an exchange accompanied by the settlement procedure for the difference in the appraised value after the market price appraisal of the object subject to exchange, the actual transfer value may be confirmed (see, e.g., Supreme Court Decision 96Nu860, Feb. 11, 1997).

The plaintiff agreed to receive KRW 250,000,000,000,000 in exchange value without market price appraisal while deciding to exchange the Fdong real estate acquired at the beginning of 2002 with DaD, Fdong commercial buildings, GGGri forests, and HH forests (hereinafter referred to as "real estate subject to 1 exchange"), and agreed to receive KRW 2,50,000,000,000,000 in exchange value. The plaintiff made a preliminary return of capital gains tax for 2002, with real acquisition value of KRW 2,000,000,000,000,000,000,000,000,000,000 won, as seen earlier, it is difficult to view the difference between the actual transaction value of the real estate subject to 10,000,000 won and the actual transaction value of the real estate subject to 2,500,000,0000,000 won,0000 won.

(2) Article 114(5) of the Act provides that "Where it is impossible to recognize or confirm the actual transaction price at the time of transfer or acquisition of the relevant asset by books or other documentary evidence due to such reasons as determined by the Presidential Decree, the transfer price and acquisition price may be determined and imposed in the order of "sale case price, appraisal price, conversion price or standard market price, etc.". Article 176-2(1) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 18705 of Feb. 19, 2005; hereinafter referred to as the "Enforcement Decree") which provides for the absence or falsity of books due to such reasons as determined by the Presidential Decree, each subparagraph of Article 176-2(1) of the former Enforcement Decree of the Income Tax Act (amended by the Presidential Decree No. 18705 of Feb. 19, 205; Article 114(5) of the Act on the Estimation Survey shall apply generally to cases where there is no actual transaction price due to other reasons.

(3) In relation to this, the defendant alleged that FFdong commercial buildings, part of the real estate exchanged for the real estate transferred by the plaintiff at the time of the first exchange contract, which is part of the FFdong commercial buildings, are assessed as 1,787,726,660 won between YB and N in accordance with the exchange contract on December 21, 2001 and sold to DaD, and thus, it constitutes a case where there are sales cases under Article 176-2 (3) 1 of the Enforcement Decree. Thus, in calculating the transfer value of the real estate through the exchange, the defendant's assertion that the transfer value of the real estate is not the real estate newly acquired through the exchange, but the real estate is not the real estate newly acquired through the exchange (see Supreme Court Decision 96Nu860, Feb. 11, 1997; 201. The defendant's assertion that the transfer value is similar to that of the real estate before and after 200 years old, and thus, is not identical to the above 130 years old or below.

(4) In addition, the defendant asserts to the purport that even if the market price appraisal result of the first exchange target real estate conducted in the trial is assessed based on the market price appraisal conducted retroactively, it is reasonable to correct the amount of the transfer income tax notified in the first sale target real estate of this case as KRW 627,089,010,000, which is deducted from KRW 471,169,270,000, which is deducted from KRW 15,919,730, which is calculated based on the market price appraisal under Article 176-2 (3) 2 of the Enforcement Decree.

살피건대, 실지거래가액이 확인되지 않는 경우의 보충적 양도가액인 감정가액은 양도일 또는 취득일 전후 각 3월 이내에 '양도'한 자산에 대하여 2이상의 감정평가법인이 평가한 것으로서 신빙성이 있는 것으로 인정되는 경우인 바(시행령 제176조의2 제3항 제2호), 을 제16호증의 1, 2의 각 기재와 당원의 주식회사 ●●●●●●법인에 대한 시가감정촉탁결과는 원고가 제1차 교환계약에 따라 '취득'한 자산 내지 그 일부에 대한 감정가액에 불과하여 이것만으로는 시행령 제176조의2 제3항 제2호 소정의 감정가액에 해당한다고 보기 부족하고, 달리 이를 인정할 증거가 없으므로, 추계과세 요건에 해 당됨을 전제로 하는 피고의 위 주장은 더 나아가 살필 필요 없이 이유 없다.

(5) Therefore, the instant disposition, based on the premise that the actual transfer value exists or can be confirmed in the transfer of land by the Plaintiff through the exchange, is unlawful.

B. Whether the disposition No. 2 of this case is legitimate

(1) On September 13, 2002, the second exchange contract: (a) the Plaintiff intended to exchange the Fdong store acquired from DaD with the former △△△△ Group on October 26, 2004 under the first exchange contract; (b) the Plaintiff assessed the FF store as KRW 2.5 billion without any market price appraisal; (c) KRW 80,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000.

(2) If it is impossible to find the actual transaction value as above, in order to determine whether the instant disposition imposing capital gains tax on the BB commercial building 'transfer' under the second exchange contract satisfies the requirements for estimated taxation, the first exchange contract cannot be deemed as having reached an agreement on the value of the FF commercial building acquired by the Plaintiff on the basis of the exchange of its content, and therefore, it cannot be deemed as having reached an agreement on the value of the FF commercial building itself, which is the asset transferred under the second exchange contract, and there is no evidence to recognize the transaction example of the above real estate and the assets identical or similar to the above real estate within 3 months before and after September 13, 2002, which is the date of acquisition of the FF commercial building.

(3) 다음으로 감정가액 적용과 관련하여 피고는, 당심에서 실시한 제1교환 대상 부동 산 중 FF동 상가 부분에 관한 시가감정결과는 소급하여 한 시가감정에 의하여 파악 되는 가액이라 하더라도 시행령 176조의2 제3항 제2호 소정의 감정가액이 있는 경우 에 해당하는바, 이를 적용하여 취득가액을 추계결정하는 경우 이 사건 제2처분으로 고지된 양도소득세액 320,123,460원은 3,401,940원이 차감된 316,721,510원으로 경정됨이 상당하다는 취지로 주장하므로 살피건대, 을 제16호증의 1, 2의 각 기재(평가 기준시점 2002. 9. 1.)와 당원의 주식회사 ●●●●●●법인에 대한 시가감정촉탁결과(감정평가 기준시점 제1차 교환계약 체결일 2002. 5. 7.)는 제2차 교환계약에 의하여 양도하는 BB동 상가의 위 취득일 전후 3월 이내에 그 취득가액에 관한 감정가액이 있는 경우라고 볼 수 없으므로, 추계과세 요건에 해당됨을 전제로 하는 피고의 위 주장도 더 나아가 살필 필요 없이 이유 없다(설령 당원의 위 시가감정촉탁결과가 BB동 상가의 취득 가액을 추계결정할 수 있는 시행령 176조의2 제3항 제2호 소정의 감정가액에 해당한 다고 보더라도, 25억 2,000만 원을 FF동 상가의 실지양도가액이라고 인정할 아무런 증거가 없다)

(4) Therefore, the disposition of this case, based on the premise that the actual transfer value exists or can be confirmed in the transfer of land by the Plaintiff through the exchange, shall be deemed unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.