Land within the designated area shall be calculated on gains from transfer based on actual transaction prices.

According to the data of the public notice of the Ministry of Finance and Economy, since the Plaintiff's transfer housing area is a designated area, the disposition that calculates gains on transfer based on actual transaction

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

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposing KRW 5,774,400 on the Plaintiff on August 17, 2009 shall be revoked.

1. Circumstances of the disposition;

The following facts are not disputed between the parties, or are recognized by Gap evidence 1 through Gap evidence 5, Gap evidence 9, Gap evidence 10, Eul evidence 10, and the whole purport of the pleadings.

A. The Plaintiff, holding from July 20, 1998, transferred KRW 130,00,000,000 to 102, and 305,000,000,000 ○○○○○-gu, ○○○○-gu, ○○○○○-gu, ○○○○-do (hereinafter “○○○○-gu, ○○-do, 385, △△△ apartment (hereinafter “the first house”) owned by the Plaintiff, but did not report capital gains tax to the Defendant on December 29, 2006. At the time of the transfer of the said apartment, the Plaintiff owned KRW 10,00,000,00 to △△, 611, Dong-dong (hereinafter “the second house”).

B. Accordingly, the Defendant informed the Plaintiff of new height after the deadline of the transfer income tax on the transfer of the second house of this case, but the Plaintiff did not report the transfer income tax. On August 17, 2009, the Defendant decided the transfer value on the ground that the Plaintiff’s first house of this case is located in the designated area pursuant to Article 104-2(2) of the former Income Tax Act (amended by Act No. 8852 of Feb. 29, 2008), and imposed a disposition of imposition of KRW 5,74,400 for the transfer income tax of the first house of this case calculated by recognizing the transfer value of the first house of this case as KRW 130,00,00,00 for the reason that the first house of this case is located in the designated area (hereinafter “disposition of this case”).

C. On September 15, 2009, the Plaintiff dissatisfied with the instant disposition and filed a request for a trial with the Tax Tribunal on September 15, 2009, but the Tax Tribunal dismissed the Plaintiff’s request on December 18, 2009.

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case is illegal for the following reasons:

(1) The first house does not fall under the “designated area” under Article 104-2(2) of the former Income Tax Act (amended by Act No. 8852 of Feb. 29, 2008) and thus, the Defendant’s calculation of capital gains tax based on the standard market price is unlawful even though it is necessary to calculate capital gains tax based on the actual transaction price.

(2) The Plaintiff acquired and transferred the instant first house within the acquisition period of a newly-built house under Article 99 of the former Restriction of Special Taxation Act (amended by Act No. 921, Jan. 1, 2010), and thus, the Defendant’s failure to apply the said provision is unlawful.

(3) The second house of this case constitutes an agricultural or fishing village house under Article 99-4(1) of the former Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2007) and thus, the said provision was not applied despite the application of the said provision, and thus, the disposition of this case was unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Judgment on the first proposal

(A) Article 96(1) of the former Income Tax Act (amended by Act No. 9485 of Mar. 18, 2009) provides that a transfer price shall be calculated based on the actual transaction price as at the time of transfer, while Article 96(2) provides that a transfer price shall be calculated based on the standard market price as at the time of transfer of the assets in certain cases, in the case of real estate located within the exceptional area, but the transfer price shall be calculated based on the actual transaction price as at the time of transfer of the assets. Article 104-2(1) of the former Income Tax Act (amended by Act No. 8852 of Feb. 29, 2008) provides that the Minister of Finance and Economy may designate a real estate price in the relevant area as a designated area in accordance with the standard and method prescribed by the Presidential Decree where

(B) According to the records in this case, ○○○○-gu, where the first house of this case was located, may recognize the fact of cancellation in the designated area under Article 208-104 of the Public Notice of the Ministry of Strategy and Finance on November 7, 2008, after being designated and publicly announced as the designated area under Article 104-2 (1) of the former Income Tax Act as the public notice of July 19, 2003 by the Ministry of Finance and Economy No. 2003-63 of the public notice of July 19, 2003. Thus, it is evident that the first house of this case was located in the designated area at the time of the transfer of the first house of this case. Accordingly, the Plaintiff’s assertion that the transfer income tax should be calculated based on the standard market price is without merit.

(C) The Plaintiff asserted that the land transaction permission zone was designated in Eup/Myeon/Dong as a unit of Eup/Myeon/Dong under the Income Tax Act, and that it was unlawful to designate 00 0 0 0 0 0 0 0 0 0 00 00 00 00 00 00 00 00 00 200 20 20 200 20 200 20 20 20 200 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 20 200 20 20 20 200 20 200 20 20 20 20 20 20 200 20 200 20 200 2.

(2) Judgment on the second ground

(A) Article 99 (1) 2 of the former Restriction of Special Taxation Act (amended by Act No. 921, Jan. 1, 2010) provides that a tax amount equivalent to 100/100 of the capital gains tax on any income accruing from a transfer of a newly-built house acquired from a housing developer within five years from the date of acquisition by a person who first concludes a sales contract with a housing developer and pays a down payment during the newly-built house acquisition period shall be reduced or exempted, and where the relevant newly-built house is transferred after five years from the date of acquisition, the capital gains accruing for five years from the date of acquisition of the newly-built house shall be deducted from the income amount subject to the capital gains tax in certain cases, and the newly-built house acquisition period shall be the period from May 22, 1998 to June 30, 199 (in cases of national housing, the period from May 22, 199 to December 31, 199).

(B) According to each statement of 1.2 of the evidence No. 3-2 in this case, the plaintiff could recognize that he entered into a sales contract of 54,854,000 won for the first house of this case with △△ comprehensive Development Co., Ltd. on December 1, 1995 and paid the down payment of 8,20,000 won for the same day. Although the plaintiff completed the registration of ownership transfer for the first house of this case on July 20, 1998, the time when the registration of ownership transfer for the first house of this case was completed for the newly-built house of this case, the plaintiff did not meet the requirements for entering into a sales contract and paying the down payment during the newly-built house acquisition period under Article 9(1)2 of the former Restriction on Special Cases concerning Taxation Act, and thus, the plaintiff's assertion of this part is not acceptable.

(3) A third-class judgment

(A) According to Article 99-4 of the former Restriction of Special Taxation Act (amended by Act No. 8827 of Dec. 31, 2007), where one household prescribed by the Presidential Decree acquires one house (rural or fishing village) and owns it for not less than 3 years during the period from August 1, 2003 to December 31, 2008, and transfers another house possessed before the acquisition of such rural or fishing village, such rural or fishing village house shall not be deemed a house owned by the relevant household, and Article 89 (1) 3 of the Income Tax Act shall apply by deeming that it is not a house owned by the relevant household, and Article 89 (1) 3 of the Income Tax Act shall apply to the person who acquired the rural or fishing village house meeting the requirements under the said provision as a transfer of one house under the Income Tax Act. However, Article 99-4 (1) 1 (c) of the Income Tax Act shall exclude the rural or fishing village house located in the designated area under Article 104-2 (1).

(B) According to the records in this case, the second house of this case is not an agricultural or fishing village house, since the second house of this case falls under the designated area under Article 104-2 (1) of the Income Tax Act at the time of June 24, 2005, since the second house of this case was designated and announced as the designated area on February 27, 2003 by 2003-9 of the Public Notice of the Ministry of Finance and Economy No. 2008-26 on January 30, 2008 after the second house of this case was designated and announced as the designated area on February 27, 2003.

(C) As to the land transaction permission area, the Plaintiff’s land transaction permission area is designated as Eup/Myeon/Dong unit, the designated area under the Income Tax Act should also be designated as Eup/Myeon/Dong unit, and the comprehensive designation of △△ City as the designated area is unlawful, but it is not accepted as it is without merit as seen in the above “(1).”

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.