Cho High Court Decision 2008J0435 (Law No. 86.30)

The propriety of a disposition divided in proportion to the standard market price, considering that the divided value of land and buildings is unclear.

As long as an agreement is deemed to have been concluded by the purchaser to remove the building, and the authenticity of the disposal document such as the sales contract is recognized, the court shall recognize the existence and content of the declaration of intent in accordance with the contents of the document, unless there is any counter-proof, and in order to reject it, there is no proof of the opposing fact.

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

Article 48-2 (Method of Calculating Tax Base)

1. The Defendant’s disposition of imposition of value-added tax of KRW 360,382,60 on November 2, 2007 against the Plaintiff on November 2, 2007 shall be revoked.

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

The date of the disposition stated in the written complaint's purport of the claim seems to be a clerical error.

1. Circumstances of the disposition;

(a) The Plaintiff is a stock company with the purpose of 00,00-3 factory site of 00,000-3, 000 7 m2, 00-4 m2, 18,369 m2, 394 m2, 00-4 m2, 382 m2, such as 0-4 m2, 382 m2, 00-6 m2, 00-3 230 m2, 00-6 m2, 00-6 m2, 00-7 m2, 000 m2, 00-7 m2, 000 m2, 000 m2, 00-7 m2, 000 m2,000 m2,000 m2,000 m25 m2,000 m2,003 m25 m2.

B. At the time of the sale and purchase contract for the instant real estate, the ○○ Central Diplomatic Association planned to remove the instant building built around 1983 and build the instant building on the instant land, but it modified the plan after the sale and purchase contract and used it as a church building by remodelling the factory building among the instant buildings.

C. The Defendant, on November 2, 2007, notified the Plaintiff of the value-added tax of KRW 360,382,600, which was calculated in accordance with the standard market price of the instant land and building at the time of entering into a contract under Article 99 of the Enforcement Decree of the Value-Added Tax Act, on the ground that the total purchase price stated in the sales contract of the instant real estate is the actual transaction price, but it is not clear to distinguish the value of the relevant land and building from the actual transaction price, pursuant to Article 48-2(4)1 of the Enforcement Decree of the Value-Added Tax Act (hereinafter “instant disposition”).

D. On January 30, 2008, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Director of the Tax Tribunal for adjudication, but received a decision of dismissal on June 30, 2008.

[Ground of recognition] The facts without dispute; the fact inquiry result of this court's ○○○ City; Gap 1, 2, and 9; Gap 1, 2, and 9; the witness's testimony and the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

(a)The master of the Party;

The plaintiff asserts that the value-added tax should be paid according to the actual transaction price because the value of the land and the building is divided into the actual transaction price. The defendant asserts that the value-added tax should be paid according to the actual transaction price, considering that the difference between the book value of the building and the building value under the sales contract is excessive, and that the plaintiff was at a higher level than the ○○ Central Down Down Down Down Down Down Down, the plaintiff set the value of the building of this case at a higher level than the general transaction practice, the value of the building of this case can not be viewed as the actual transaction price in light of the fact that the value of the building of this case is set at a very low level.

(b) Related statutes;

Article 48-2 (Method of Calculating Tax Base)

C. Determination

(1) Article 48-2 (4) (proviso) 1 of the Enforcement Decree of the Value-Added Tax Act provides that where an entrepreneur supplies land and a building and other structures fixed on the land together, the supply price of the relevant building and other structures shall be based on the actual transaction price: Provided, That where the distinction between the value of land and the value of the building and other structures is unclear in the actual transaction price, and where the standard market price under Article 99 of the Income Tax Act exists with respect to the land and the building and other structures, it shall be calculated in proportion to the value calculated according to the standard market price as of the date of supply contract as of the date of supply contract. In the event that an entrepreneur supplies the land and the building built on the land together, and where both are unclear, the supply price of the building subject to value-added tax and the value of the building built on the land subject to non-taxation is different from the value of the land, the above provision shall not be applied in light of the principle of taxation based on Article 16 of the Framework Act on National Taxes (see, e.g., Supreme Court Decision 2009Nu96.

(2) The facts that the sales contract of the instant real estate clearly distinguish the building price from the land price are as seen earlier, and thus, the Defendant, claiming that the building price is not the actual transaction price, bears the burden of proof as to the fact that the indication is false.

On the other hand, the facts that the book value of the building of this case is KRW 1,792,828,819, and the standard market price significantly exceeds the value of the building stated in the sales contract of this case are 1,59,304,260 won. However, the actual transaction price refers to the transaction price of the building of this case, which is not the market price reflecting the objective exchange value, and the actual transaction price refers to the amount actually agreed for the payment at the time of the transaction. According to the testimony of Park Park Jong-ok's testimony, 00 years have passed since 20 years have passed since 0 years have been constructed, and 0 years have not passed since 0 years have been tried to separate the price of the building of this case at the time of the sales contract to build a new church, but it appears that there was an agreement between the plaintiff and the 000,000 won under the sales contract and the 1,599,304,260 won. Thus, in order to recognize the existence of a false statement or dissenting opinion in the content of this case.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.