Cho High Court Decision 2007Gu5171 (Law No. 12, 2008)

If the time of acquisition is transferred en bloc, it shall be calculated the actual transaction price.

If the time of acquisition is different and the land subject to assessment is transferred en bloc without distinction between the transfer value, the transfer value of the land subject to assessment of actual transaction value shall be calculated in proportion to the standard market price in accordance with Article 100 (2) of the Income Tax Act.

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

Article 100 of the Income Tax Act

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s disposition of imposition of capital gains tax of KRW 189,219,250 for the Plaintiff on August 6, 2007 shall be revoked.

1. Circumstances of the disposition;

A. On December 19, 2004, the Plaintiff transferred 654,000,000 won to Nonparty ○○, ○○○○○○, ○○○, ○○, 234,274 square meters (hereinafter “1 land”) and 158-2, prior to 158-2, prior to 809 square meters (hereinafter “2,” hereinafter referred to as “the land in this case” as “the land in combination with the 1 land”) collectively to Nonparty ○○, ○, ○○-si, ○○○, ○○○, ○○, ○○○, ○○, ○○, ○○, ○○, 274 square meters, without distinguishing the transfer value, the land in this case shall be reported as the standard market value, and the preliminary return of the tax base of capital gains tax shall be made as the actual transaction value subject to reporting within one year

B. On April 19, 2006, the purchaser of the instant land: (a) written off the L/O land and the second land on April 19, 2006; and (b) on May 15, 2006, the instant land (hereinafter “the instant land”) divided the instant land into 158-4 square meters prior to 158-4, and 422 square meters prior to 158-2, prior to 158-2, and 661 square meters prior to 158-2, respectively; and (c) the transfer price of the third land to Nonparty Seo-gu, the transfer price is KRW 357,40,000; and (d) the acquisition price is KRW 654,00,000,000, which is the actual acquisition price of the instant land, by applying the preliminary return of the transfer income tax base based on the actual transaction price at the time of acquisition (654,835,000,000 square meters calculated as the standard market price).

C. The Daegu regional tax office found the difference between the transfer value of the instant land reported by the Plaintiff and the acquisition value reported by the buyer, at the time of regular business audit for the Defendant, and confirmed the actual transfer value and the acquisition value. As a result, the Plaintiff transferred the instant land by lot to this ○○○○, without distinguishing the amount from the transfer value, and the fact that the Plaintiff acquired KRW 171,50,000,000 from the former owner, Kim ○, the former owner of the instant land.

D. Accordingly, the Daegu regional tax office demanded that the transfer value of the instant land transferred by the Plaintiff to the Defendant be corrected by applying the amount of KRW 654,000,000, which is calculated in proportion to the standard market price (the same day as the publicly assessed individual land price of the instant land) as the amount calculated in proportion to the actual transfer value of the instant land pursuant to Article 100(2) of the Income Tax Act, since the transfer value of the instant land transferred by the Plaintiff is unclear.

E. Accordingly, the Defendant rendered a correction and notification of KRW 189,219,250 to the Plaintiff on August 6, 2007 (hereinafter “instant disposition”).

F. The plaintiff appealed and requested a judgment on November 27, 2007, but the Tax Tribunal dismissed the plaintiff's request on June 12, 2008.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 3, 4, 5, 9 (including branch numbers in the case of provisional evidence), Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

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

A. The plaintiff's principal

(1) If the value of land, buildings, etc. is unclear, the provisions of Article 100(2) of the Income Tax Act, which provides that the value shall be calculated by taking into account the standard market price at the time of acquisition or transfer, is not a mandatory provision, but a voluntary provision, so the actual transaction price at the time of acquisition shall be calculated by taking into account the acquisition price at the time of transfer, location conditions,

(2) Article 100(2) of the Income Tax Act, Article 166(4) of the Enforcement Decree of the same Act, and Article 48-2(4) of the Enforcement Decree of the Value-Added Tax Act provide that a transfer margin shall be calculated based on the appraised value if there is no standard market price of land, buildings, etc. in calculating transfer margin when the distinction between the value of land, buildings, etc. is unclear. If there is no appraised value, it shall be calculated based on the appraised value. If there is no appraised value, the acquisition value shall be calculated based on the book value. Therefore, in calculating the transfer value of land 2, if there is no book value, the Defendant shall be calculated based on the acquisition value. Thus, in calculating the transfer value of land 2, even if there was no standard market value, the Defendant’s disposition was calculated based on the appraised value, book value, and acquisition value, and without applying the calculated calculated calculated calculated

(3) Even if the standard market price is determined by applying the officially assessed price of the land prior to the partition of household affairs and second land, it is unlawful for the instant disposition, which was calculated by applying the officially assessed price of the second land without any effort by the Defendant, such as evaluating the second land or requesting an appraisal according to lawful procedures, in cases where there is an appraised value based on such values, and where there is no appraised value, it is calculated based on the standard market price. Therefore, it is unlawful for the instant disposition, which was calculated by applying the officially assessed price of the second land without any effort by the Defendant to assess the second land or request an appraisal.

(b) Related statutes;

(c) Fact of recognition;

(1) On October 24, 1995, the Plaintiff purchased the land No. 1 in KRW 207,500,000 from the non-party Hanok-si. On October 12, 2004, the Plaintiff purchased the land No. 2 in KRW 171,50,000 from the Kim Jong-do, but sold the land No. 1 and the land No. 2 in KRW 654,00,00 in a lump sum to the Kim ○-man on December 19, 2004.

(2) 1,613 square meters prior to ○○○○○○-si, ○○○○-si, ○○○○○○-si, which is owned by Kim○-do, were divided into 252 square meters prior to 158 square meters prior to September 7, 2004, 158-1, 552 square meters and 2 land prior to 204.

(3) The officially assessed individual land price publicly announced on May 31, 2004 is KRW 97,700, and the officially assessed individual land price publicly announced on May 31, 2004 is KRW 97,70,00,000, 00, 000, ○○○-ri 158, ○○-si, ○○○-si, ○○○○○, a land lot before the land was divided

(4) As of January 1 of each year, the officially assessed land price of the land is divided into the land characteristics, and the land land price of 204 as of October 31 as of July 1, as of July 2, 2004, due to the regular and land alteration (division, annexation, etc.) publicly announced on May 31. The publicly announced individual land price of 204 was not publicly announced as of January 1 and July 1, 2004.

[Reasons for Recognition] The aforementioned evidence, Gap evidence Nos. 2, 6, and 10, and the purport of the whole pleadings

D. Determination

(1) Article 96(1) of the Income Tax Act provides that the transfer value shall be based on the standard market price at the time of transfer, and where the real estate is within one year after its acquisition, it shall be based on the actual market price. Article 100(2) of the same Act and Article 166(4) of the Enforcement Decree of the same Act provide that where the transfer value or acquisition value is calculated based on the actual market price and where the land and the buildings are acquired or transferred together, if the distinction between the value of the land and the buildings is unclear, it shall be calculated under the proviso of Article 48-2(4) of the Enforcement Decree of the Value-Added Tax Act by taking into account the standard market price at the time of acquisition or transfer. Article 48-2(4) proviso of the Enforcement Decree of the Value-Added Tax Act provides that where the distinction between the value of the land and the buildings is unclear, it shall be calculated in proportion to the value calculated according to the current standard market price at the time of supply contract if there is no appraisal value, and where there is no appraisal value, it shall be a sum.

According to the above, the transfer value is calculated based on the actual transaction value as the real estate transferred within one year after its acquisition, and the land 1 and 2 falls under the case where the transaction value as a whole is determined by determining the highest value of the value as a whole without distinguishing and specifying the highest value as a whole by parcel. Thus, considering the standard market price, etc. at the time of acquisition or transfer under the above provision, it is necessary to calculate the transaction value according to the criteria stipulated in Article 48-2 (4) of the Enforcement Decree of the Value-Added Tax Act in consideration of the standard market price at the time of acquisition or transfer under the above provision. Thus, this part of the plaintiff's assertion is without merit.

(2) Under Article 99(1) of the Income Tax Act, the standard market price of the land is determined based on the officially assessed individual land price. If part of the land is transferred by installments, as long as the officially assessed individual land price was publicly announced as to the land of the previous parcel number at the time of division, the standard market price of the divided land shall be assessed by applying the officially assessed land price of the original parcel number (see Supreme Court Decision 2000Du8165, Feb. 23, 2001). The officially assessed land price in 2004 is KRW 97,70, and the second land is divided from the land of 158, 204 at ○○○○○○○○○ ○○○○○ ○○○ ○○ ○○ ○○ ○○ ○○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ ○ 158, which is the final land price at the time of division.

(3) According to the proviso of Article 48-2 (4) 1 of the Enforcement Decree of the Value-Added Tax Act, even if the standard market price for land, etc. whose classification is unclear, if there is an appraisal value, it shall be calculated in proportion to such value, and if there is no appraisal value, it shall be calculated in proportion to the value calculated according to the standard market price. The above provision is merely based on the value, if there is an appraisal value at the time of transfer of the above land, etc., and if there is no appraisal value at the time of transfer, it shall be based on the appraisal value, and if there is no appraisal value at the time of transfer, it shall not be demanded by the tax authority to actively request an appraisal and to be based on the appraisal value. Thus, it shall not be deemed unjust merely because the defendant did not undergo the procedure such as requesting an appraisal, etc., and there is no evidence to prove

Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.