Supreme Court Decision 2012Du17872 ( November 08, 2013)

It is reasonable to consider the book value appropriated as the building account by the Plaintiff as the necessary expenses for the transfer of this case.

Unless the acquisition of the instant real estate in KRW 1 billion from the previous owner is clearly confirmed by financial data, etc., it is unreasonable to exclude the facility value of the instant real estate from the acquisition value.

2013Nu31198 Revocation of Disposition of Imposing capital gains tax

Park ○

The Director of Gangnam District Office

Supreme Court Decision 2012Du17872 Decided October 31, 2013

August 29, 2014

September 19, 2014

1. Of the judgment of the court of first instance, the part against the plaintiff ordering cancellation below shall be revoked.

The Defendant’s disposition of imposition of capital gains tax of KRW 34,920,190 (including additional tax of KRW 9,330,132) for the year 2007 against the Plaintiff on November 1, 201, is revoked in excess of KRW 28,418,026 (including additional tax of KRW 7,592,856).

2. The plaintiff's remaining claims are dismissed.

3. 4/5 of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance is revoked, and the defendant revoked the disposition of imposition of capital gains tax of KRW 34,920,190 for the plaintiff on November 1, 2010.

1. Details of the disposition;

A. On June 14, 2005, the Plaintiff: (a) transferred a factory site of 00 ○○○, ○○○○, 254-3 square meters and a factory building of 1,302 square meters and a 224 square meters and a road of 254-9 square meters (hereinafter “instant real estate”) on January 23, 2007 to AAA (hereinafter “AA”) on the basis of the actual transaction price; and (b) reported the transfer income tax of 898,284,872 won based on the actual transaction price; and (c) filed a report on the transfer income tax with the acquisition price of 1 billion won.

B. On August 9, 2010 to August 23, 2010, the Defendant determined and notified the Plaintiff of KRW 92,680,30 of the transfer income tax reverted to the year 207 on November 1, 2010 by taking the transfer value of the instant real estate as KRW 1,020,907,129, acquisition value of KRW 842,00,000 according to the results as shown in Table 1 as follows.

C. Accordingly, the Plaintiff filed a request for national tax review, and the Commissioner of the National Tax Service, on March 4, 201, calculated the transfer value as KRW 1,020,907,129, and the acquisition value as KRW 918,00,00,000 on the ground that the book value of the structure should be included in the acquisition value (hereinafter referred to as “instant disposition”). The Defendant corrected the tax base and tax amount by reducing the transfer income tax by 34,920,190 (including additional tax for negligent return 2,59,05,005, additional tax for negligent return 6,71,127) according to the said decision (hereinafter referred to as “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, 9, 12 evidence, Eul evidence 1 through 4 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether a disposition is lawful

A. The parties' assertion

(i) The plaintiff's assertion

The Plaintiff, at the time of acquiring the instant real estate from Ansan, included KRW 1 billion in total of KRW 55 million in the value of electric power plant facilities, KRW 15 million in the value of Hostst, and KRW 12 million in the value of fire-fighting equipment and boiler, etc. (hereinafter collectively referred to as the “instant facilities”). Since the instant facilities are included in the facilities and structures attached to the factory building, the instant disposition of imposition of the instant facilities should be included in the acquisition value of the instant real estate and be deducted as necessary expenses. However, the instant disposition of imposition of the instant facilities was unlawful by excluding the acquisition value of the instant real estate from the acquisition value of the instant real estate.

2) Defendant’s assertion

It is reasonable that the Plaintiff imposed capital gains tax on the Plaintiff’s transfer of the instant real estate, machinery, equipment, and fixtures to Nonparty Company as the transfer value of KRW 608,290,168 and the transfer value of KRW 47,425,822 among the price of the instant real estate, machinery, equipment, and fixtures 1.7 billion, which are not subject to capital gains tax because it is merely the transfer value as a general asset and is not subject to capital gains tax. Therefore, it is reasonable to consider the total amount of KRW 1,020,907,129 as the transfer value of the land, buildings, and structures calculated by dividing the value of the instant real estate, buildings, and fixtures by the transfer value and impose capital gains tax on the Plaintiff. The instant facilities fall under the type of machinery or equipment that are excluded from the taxable object of capital gains tax, but if the instant facilities fall under the facilities or structures of the instant real estate and must be deducted as necessary expenses, the transfer value of the said land, structure, and parts

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Acquisition of the instant real property

원고는 BBB라는 상로로 동물약품제조업을 경영하던 중 안〇〇로부터 이 사건 부동산을 10억 원에 취득하면서 토지와 공장건물에 관하여서만 합계 8억 4,200만원의 세금계산서를 발급받았고, 이에 따라 장부에 10억 원을 토지 3억 8,200만 원, 건물 4억 6,000만 원, 구축물 7,600만 원, 기계장치 7,000만 원, 비품 1,200만 원으로 나누어 계상하였는데 아래 <표2>에서 보는 것처럼 이 사건 설비 중 전기수전설비와 호이스트는 기계장치로, 소방설비 및 보일러 등은 비품으로 분류되어 있다.

2) Details of the change in assets by account of the instant subsidiary company

In 2005, 111,005,310 won was included in the previous water supply account. Of the instant facilities, KRW 70 million was included in KRW 767,163,563 in the mechanical device account, and KRW 12 million in total of the fire-fighting equipment and boiler among the instant facilities was included in KRW 84,793,690 in the equipment.

The last balance of each account in 2006 has increased or decreased depending on changes, resulting in a change in 109,177,310 won in structures, 674,303,023 won in machinery and equipment, 81,96,599 won in fixtures, and the remaining value as of the end of 2006 subtracting the accumulated depreciation amount was appropriated for 103,002,221 won in structures, and 673,54,273 won in machinery and equipment, 75,391,349 won in each structure.

3) The transfer of the instant real estate

On January 23, 2007, the Plaintiff transferred to the non-party company established in order to engage in the same type of business with factory facilities, etc. to KRW 1.7 billion in total by means of business transfer and takeover. Of the instant facilities, the electric power plant facilities and ice list among the instant facilities are included in the mechanical items, fire fighting equipment and boiler, etc., and the details of the business transfer/acquisition agreement between the Plaintiff and the non-party company related to the instant real estate, and the transfer/acquisition value of each asset under the contract are summarized as follows.

4) The status of the use of the facility of this case

The facility of this case is a facility that is firmly attached to the inner walls or floor of the factory building of this case, such as electric power plant equipment, ice list, fire-fighting equipment, boiler, stoves, stoves, and stoves, etc., and is directly necessary for the operation of machinery and equipment within the factory building or for the enhancement of the utility value of the factory building. The value of the facility of this case is KRW 70,087,797 (the value of the facility of this case classified as machinery and equipment) if it is distributed in proportion to KRW 1.7 billion between the Plaintiff and the non-party company for business transfer and acquisition in proportion to the facility of this case.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, evidence 7, evidence 8-2, 3, 9,10, 11, Eul evidence 3, 4, and 5, the purport of the whole pleadings

D. Determination by issue

1) Whether the acquisition value of the instant facilities can be deducted from the transfer value of the instant real estate as necessary expenses

Article 94(1)1 of the former Income Tax Act (amended by Act No. 9774 of Jun. 9, 2009) provides that “The transfer income of the land or building includes the facilities and structures attached to the building while putting income from the transfer of such land or building as one of transfer income.” Article 95(1) of the same Act provides that “The transfer income amount shall be calculated by deducting necessary expenses from the total income of transfer (hereinafter “transfer value”) and subtracting the special long-term holding deduction amount from the amount (hereinafter “transfer value”).” Article 97(1)1 and 2 of the same Act provides that “The transfer value of the facilities attached to the building shall be deducted from the actual transaction value of the transferred assets, capital expenditure, etc. as prescribed by Presidential Decree.” Article 163(3)3 of the Enforcement Decree of the same Act provides that “The transfer value of the facilities attached to the building shall be deducted from the capital expenditure of the building where the transfer value of the facilities is reduced or exempted from the capital expense of the building.”

In this case, according to the above facts, although the facilities of this case are included in the Plaintiff’s account book as separate machinery and equipment from the real estate of this case, they actually fall under the facilities attached to increase the usefulness of the factory building of this case, such as electrical equipment, water supply facilities, heating facilities, fire extinguishing facilities, etc., installed to improve or use the factory of this case. Thus, the acquisition value of the facilities of this case shall be included in the acquisition value of the real estate of this case and the calculation of the transfer value shall also be taken into consideration in calculating the transfer value of the real estate of this case after deducting the acquisition value of the facilities of this case as necessary expenses. However, as seen above, in calculating the transfer value of the facilities of this case as part of the machinery and equipment of this case, the Defendant deemed the transfer value of the facilities of this case as part of the transfer value of the facilities of this case and did not include the transfer value of the facilities of this case in the transfer value of the previous 0th of the facilities of this case at the time of the disposal of the previous 0th of the facilities of this case.

(ii)the calculation of gains on transfer and the amount of tax;

Of the transfer value of the instant real estate, the value of the instant facilities is KRW 70,087,797 (part 63,147,145, which is classified as machinery) as seen earlier, and the transfer value, acquisition value, transfer value, and calculated tax amount related to the instant real estate are as shown below (the Plaintiff asserts that the transfer value of the instant real estate is KRW 1,020,907,120,00 between the parties, but the Plaintiff asserts that there is no dispute between the parties that the transfer value of the instant real estate is KRW 1,020,907,120, it is merely based on the premise that the transfer value of the instant facilities was not included in the transfer value of the instant real estate, and that the instant facilities are

Therefore, the portion exceeding KRW 28,418,026 (including additional tax on negligent tax returns of KRW 2,082,517, and additional tax on unfaithful return of KRW 5,510,339) out of capital gains tax of this case 34,920,190 should be revoked as it is unlawful.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is partially revoked, and it is so decided as per Disposition.