Seoul Administrative Court 2009Gudan1174 ( October 13, 2010)

Seocho 209west 1824 (209.06.04)

The calculation method shall apply to the case where the land and the land are transferred collectively.

In cases where the value of land, buildings, etc. is unclear, it is applicable even if the value of land and buildings is unclear.

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

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall revoke the imposition of capital gains tax of KRW 378,496,290 for the plaintiff on March 9, 2009.

1. Quotation of judgment of the first instance;

A. The reasoning for the statement concerning this case is as stated in the reasoning of the judgment of the first instance except for the part to be determined additionally in Section B below, and thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

B. Additional determination

(1) In light of the location and form of each land of this case, the Plaintiff assessed the price of each land of this case on the same basis as the sale price was calculated even in light of the circumstances of transaction, and thus, even if the price classification is clear, the Plaintiff appears to fall under the case where the price classification between each land of this case is unclear, and thus, applying Article 100(2) of the Income Tax Act and Article 166(6) of the Enforcement Decree thereof, and applying Article 100(2) of the Income Tax Act and Article 166(6) of the Enforcement Decree thereof, the Plaintiff’s calculation and imposition of transfer income tax on the amount calculated by multiplying the area of each land of this case by

(2) However, even though there is a substantial difference in the use of each land of this case and the standard market price, the Plaintiff, while transferring each land of this case en bloc, set the total purchase price without considering such difference, and without separately setting the sales price of each land of this case. Therefore, the classification of values between each land of this case shall be deemed unclear.

(3) As seen earlier, Article 100 (2) of the Income Tax Act provides that "if the land and a building are acquired or transferred at the same time, they shall be entered separately, and if the distinction between the value of the land and a building is unclear, it shall be calculated in accordance with the Presidential Decree in consideration of the standard market price at the time of the acquisition or transfer, etc., and Article 166 (6) of the Enforcement Decree provides that "if the distinction between the value of the land and a building is unclear, it shall be calculated in accordance with the proviso of Article 48-2 (4) of the Enforcement Decree of the Value-Added Tax Act." Since all of the above provisions use the expression "land and a building" as "land and a building", it shall be assumed that the above provisions apply not only to cases where the distinction between the value of the land and the building is unclear, but also to cases where the classification between the land is unclear.

(4) Therefore, even if Article 100(2) of the Income Tax Act and Article 166(6) of the Enforcement Decree thereof are applied, deeming that the classification of values between each land of this case is unclear, it cannot be deemed unlawful against the principle of no taxation without law. The Plaintiff’s above assertion is

2. Conclusion

Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is so decided as per Disposition.