Whether it is possible to report the standard market price when it is transferred to a project implementer for public works.

With respect to real estate for public-service business, the transfer margin may be calculated based on the standard market price by filing a final return.

Article 96 of the Income Tax Act

[Seoul High Court 2007Nu15515 ( October 12, 2007)]

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant revoked a disposition rejecting a request for correction of transfer income tax for the year 2004 against the plaintiff on October 20, 2006, and the defendant shall refund KRW 17,630,694 to the plaintiff.

2. Purport of appeal

The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revocation shall be dismissed.

1. Scope of the judgment of this court;

In the first instance court, the Plaintiff filed a claim against the Defendant to revoke a disposition rejecting a request for correction of transfer income tax stated in the purport of the claim, and sought a refund of KRW 17,630,694, and the court of first instance accepted the claim to revoke a request for correction of transfer income tax, and dismissed the claim for refund. Since only the Defendant appealed against this, the subject of the judgment of this court is limited to the cancellation of a request for correction

2. Quotation of judgment of the first instance;

The court's reasoning concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for the parts cited or added in the following three paragraphs. Thus, this court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

3. Parts used or added;

A. On No. 3, No. 17 of the judgment of the court of first instance, "the plaintiff's assertion" was written by "the plaintiff's assertion of this party".

B. After the first instance court's decision No. 8, "the principal place", "if the defendant did not make a different report from the actual transaction price after the plaintiff made a preliminary return of transfer income tax due to the actual transaction price, the transfer income tax on the land in this case shall be calculated based on the actual transaction price, and since the transfer income tax base is determined by the return and payment, Article 85 of the former Restriction of Special Taxation Act shall be limited to the case where the plaintiff who is the taxpayer within the deadline for the return of transfer income tax, and regardless of the provisions of Article 85 of the former Restriction of Special Taxation Act, Article 96 (1) 6-2 of the Income Tax Act and the proviso of Article 97 (1) 1 (a) of the same Act, the interpretation of "the transfer value and acquisition value under the provisions of the same Act shall be determined based on the standard market price" is in violation of the principle of strict interpretation. Thus, this case's request for correction is lawful, since it does not constitute the subject of a request for correction.

C. Article 85 of the former Restriction of Special Taxation Act provides that "The purpose of Article 85 of the former Restriction of Special Taxation Act is to facilitate the expropriation of real estate for public services by reducing taxpayers' tax burden on real estate for public services as a result of the recognition of special taxation of transfer income tax on real estate for public services in the designated area." Article 96 (1) of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005) provides that "transfer value of the asset under Article 94 (1) 1 and 2 of the former Income Tax Act shall be based on the standard market value at the time of transfer of the relevant asset: Provided, That if the relevant asset falls under any of the following subparagraphs, the transfer income tax shall be imposed based on the standard market value, and it is exceptionally imposed based on the actual transaction value, and the plaintiff's assertion that the transfer income tax is more than the standard market price at the time of the final return of transfer income tax and the actual transaction price at the time of the plaintiff's filing of the final return of transfer income tax base."

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the defendant's appeal is dismissed. It is so decided as per Disposition.

[Seoul Administrative Court 2007Guhap4582, May 30, 2007]

1. The defendant's disposition rejecting a request for correction of transfer income tax for the year 2004 against the plaintiff on October 20, 2006 shall be revoked.

2. The part concerning the claim for refund in the lawsuit of this case shall be dismissed.

3. One-fourth of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment as referred to in paragraph (1) and the defendant are to refund KRW 17,630,694 to the plaintiff.

1. Circumstances of dispositions;

The following facts are not disputed between the parties, or may be acknowledged by each entry of Gap 1 through 7, Gap 9, Eul 1, 2, and 3:

A. On May 17, 1973, the Plaintiff: (a) around 00, 00 ○○○-dong 603-13 123 m2 (hereinafter “the instant real estate”); (b) around December 30, 1999, acquired and owned the remainder of 1/2 m2 m2; and (c) around February 28, 2004, ○○-gu ○○○-si, including the instant real estate, was designated as an area where the transfer value and acquisition value are calculated based on the actual transaction value (hereinafter “designated area”) pursuant to Article 96(1)6-2 of the former Income Tax Act (amended by Act No. 7837, Dec. 31, 2005; hereinafter the same).

B. The 1/2 shares of the instant real estate (hereinafter “the instant land”) were respectively expropriated on September 10, 2004, and the remaining 1/2 shares (hereinafter “the instant land”) were respectively expropriated on June 15, 2005 on June 15, 2005.

C. On November 30, 2004, the Plaintiff calculated capital gains tax on the transfer of the instant land as the actual transaction price and paid capital gains tax of KRW 44,022,303 to the Defendant (after the Defendant issued a revised notification of capital gains tax of KRW 6,136,970 to the Plaintiff on October 2, 2006 on the ground that the acquisition price of the instant land was mistakenly calculated on October 2, 2006 on the grounds that the acquisition price of the instant land was calculated on August 31, 2005). The Plaintiff calculated capital gains tax on the instant land other than the instant land as the actual transaction price and paid capital gains tax to

D. Meanwhile, as the former Restriction of Special Taxation Act was amended by Act No. 7322 on December 31, 2004, Article 85 of the same Act was newly established a special provision on capital gains tax that can calculate capital gains on the basis of standard market price (hereinafter referred to as the "special provision of this case"), notwithstanding the provisions of Articles 96 (1) 6-2 and 97 (1) 1 (a) (proviso) of the former Income Tax Act, for real estate for public works within the designated area.

E. When the Plaintiff became aware that the special provisions of this case under the former Restriction of Special Taxation Act (amended by Act No. 7839, Dec. 31, 2005; hereinafter the same) can also be applied to the transfer of the real estate of this case, the Plaintiff filed a final return of transfer income tax on the land other than the issue of this case at the standard market price on May 2006 and received transfer income tax overpaid from the Defendant. On October 16, 2006, the Plaintiff requested the Defendant to correct the tax amount of KRW 44,02,30 based on the scheduled return of transfer income tax pursuant to Article 45-2 (1) of the Framework Act on National Taxes (amended by Act No. 7839, Oct. 206; 26, 2006; hereinafter the same), but the Defendant had already rejected the application of the special provisions of Article 96 (1) 6 and Article 97 (1) 1 (a) of the former Income Tax Act as the transfer price and the acquisition price.

2. The plaintiff's assertion and judgment

A. The plaintiff's assertion

The plaintiff filed a preliminary return of capital gains tax on the land at issue of this case as the actual transaction price does not intend to select and report the criteria favorable to the plaintiff among the standard market price and the actual transaction price pursuant to Article 96 (1) 6 of the former Income Tax Act, but reported the actual transaction price disadvantageous to the plaintiff pursuant to Article 96 (1) 6-2 of the former Income Tax Act. Thus, the application of the proviso to Article 85 of the former Restriction of Special Taxation Act to the land at issue of this case cannot be ruled out. Thus, if the plaintiff filed a request for correction within the deadline for filing a request for correction by meeting the requirements under Article 45-2 (1) of the Framework Act on National Taxes, the disposition at issue of this case is illegal and revoked. Further, the defendant is liable to refund 17,630,694 won, which is the amount calculated by deducting the amount calculated according to the standard market price from the actual transaction price calculated based on the scheduled return of capital gains tax on the land at issue of

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Whether the instant disposition is unlawful

㈎ 이 사건 경정청구의 기한 준수 여부

On September 10, 2004, after the land at issue in this case was expropriated, the plaintiff filed a preliminary return of capital gains tax on November 30, 2004, which was within two months from the last day of the month to which the expropriation date belongs, and filed a request for correction of this case on October 16, 2006 thereafter, the plaintiff constitutes "person who filed a tax base return under Article 45-2 (1) of the Framework Act on National Taxes within the statutory due date of return." Since the plaintiff filed the request for correction of this case within three years from May 31, 2005, the statutory due date of return of capital gains tax on the land at issue in this case, the deadline for filing the request for correction was observed.

㈏ 경정청구사유의 존재 여부

(1) Article 45-2 (1) 1 of the Framework Act on National Taxes provides that a request for correction may be made when the tax base and tax amount entered in the tax base return exceed those to be reported under tax-related Acts. Articles 96 (1) 6-2 and 97 (1) 1 of the former Income Tax Act provide that the transfer value and acquisition value shall be calculated based on the actual transaction value in the case of real estate prescribed by the Presidential Decree among real estate located in the designated area. Article 85 of the former Restriction of Special Taxation Act provides for the special provisions of this case: Provided, That Article 96 (1) 6 of the former Income Tax Act and the proviso of Article 97 (1) 1 (a) of the former Income Tax Act provides that the transfer value and acquisition value shall not be calculated based on the standard market value, and Article 12 of the Addenda of the same Act (Article 7322 of the same Act, December 31, 2004) provides that the special provisions of this case shall apply from the final

② As seen earlier, the Plaintiff’s preliminary return on capital gains tax calculated on the basis of the actual transaction price higher than the standard market price with respect to the land at issue at issue at issue at issue at issue at issue at the time of calculating the transfer price and the acquisition price based on the actual transaction price higher than the standard market price is reported pursuant to Article 96(1)6-2 of the former Income Tax Act as the land at issue at issue at issue at issue at issue at issue at issue at issue at the time of January 1, 2005, the date of final return on capital gains tax base ( May 31, 2005) for the transfer of the land at issue at issue at issue at issue at issue at issue at issue at the time of the date of entry into force of the Special Provision at issue at issue at issue at issue at the time of the final return on capital gains tax base. Unlike the preliminary return, the Plaintiff failed to make a final return on capital gains tax base at the standard market price

③ Therefore, the instant disposition rejecting the Plaintiff’s request for correction despite the existence of the grounds for filing a request for correction pursuant to Article 45-2(1)1 of the Framework Act on National Taxes should be revoked as unlawful.

(2) Whether the lawsuit on the part of the claim for refund is lawful

On the other hand, the provision of Article 51 (1) of the Framework Act on National Taxes concerning the refund of a national tax is just a declaration of the legal doctrine that immediately return of unjust enrichment, the existence and scope of which have already been determined as unjust enrichment, without filing an application for refund by a taxpayer, is reasonable in the justice and fairness. The amount of erroneous payment or refundable tax, the existence and scope of which have already been determined, may be claimed by a taxpayer as a civil lawsuit seeking the return of unjust enrichment (see Supreme Court Decision 97Da26432, Oct. 10, 1997). Accordingly, a claim for refund shall be filed against the Republic of Korea, the subject of excessive payment of capital gains tax, and the defendant, the administrative agency of which is only the administrative agency, shall be deemed to be disqualified, and thus, the lawsuit against the plaintiff's claim for refund shall be deemed to be unlawful as it was filed against the defendant-eligible administrative agency.

3. Conclusion

If so, the plaintiff's claim for revocation of the disposition of this case is justified, and the part of the claim for refund of this case among the lawsuit of this case is unlawful and dismissed as it is so decided as per Disposition.

Related Acts and subordinate statutes

○ Scope of transfer income under Article 94 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)

(1) The transfer income shall be the following incomes generated in the current year:

1. Income accruing from transfer of land (referring to a lot of land subject to registration of land category in the cadastral record under the Cadastral Act) or buildings (including the facilities and structures annexed to such buildings);

2. Income accruing from transfer of any right to the real estate falling under any of the following items:

(a) Right to acquire real estate (including the right to acquire a building upon completion of its construction and its appurtenant land);

(b) Superficies;

(c) Chonsegwon and registered real estate lease; and

○ Article 96 Transfer Value

(1) The transfer value of assets referred to in Article 94 (1) 1 and 2 shall be the standard market value at the time of transfer of the assets concerned: Provided, That where the assets concerned fall under any of the following subparagraphs, the actual transaction value between the transferor and transferee (hereinafter referred to as “actual transaction value”) shall apply:

6. Where the transferor reports the actual transaction price at the time of transfer and acquisition to the head of tax office having jurisdiction over the place of tax payment by the deadline for final return under Article 110 (1).

6-2. Where the rate of increase of real estate prices in the relevant area is higher than that of nationwide consumers, and falls under real estate prescribed by the Presidential Decree from among real estate located in the area designated by the Minister of Finance and Economy according to the standards and methods prescribed by the Presidential Decree, as the rate of increase of real estate prices in the relevant area has

Article 97 (Calculation of Necessary Expenses in Transfer Income)

(1) In calculating gains on transfer of a resident, necessary expenses to be deducted from the transfer value shall be as follows:

1. Acquisition value:

(a) In case of assets as prescribed in Article 94 (1) 1 and 2, the standard market price at the time the assets are acquired: Provided, That in case where the assets concerned fall under any of subparagraphs of Article 96 (1), it shall be based on the actual transaction price required for the acquisition of such assets;

(b) In cases of assets falling under Article 94 (1) 3 and 4, the actual transaction price required for the acquisition of the relevant assets;

(c) In the case of proviso (a) or (b), where it is impossible to confirm the actual transaction value at the time of acquisition, the transaction example value, appraisal value or conversion value

○ Standard for designated area, etc. under Article 162-3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005)

(1) The term “area designated by the Minister of Construction and Transportation according to the standards and methods as prescribed by the Presidential Decree” in Article 96 (1) 6-2 of the Act means an area designated by the Minister of Finance and Economy after going through a deliberation of the Deliberation Committee on Real Estate Price Stabilization under Article 162-4 (hereinafter referred to as the “designated area”) where the Minister of Construction and Transportation makes a request for designation as he deems that there exists a possibility that the increase of real estate prices in the relevant area may continue or might be converted into another area in view of the real estate price trend throughout the country, regional characteristics, etc. from among the areas falling under any of the following subparagraphs. In this case, with respect to an area for which the Minister of Construction and Transportation has failed to make a request for designation, he shall refer it

1. Area wherein the inflation rate of house trade prices in the month immediately preceding that whereto belongs the date of designation (hereafter in this paragraph, referred to as the “immediately preceding month”) is higher than 130/100 of the national consumer price inflation rate, which falls under one of the following items:

(a) Area where the monthly average inflation rate of house trade prices during 2 months retroactive from the immediately preceding month is higher than 130/100 of the inflation rate of national house trade prices; and

(b) Area where the annual average inflation rate for one year retroactive from the immediately preceding month is higher than the annual average inflation rate for three years retroactively from the immediately preceding month; and

2. Area wherein the inflation rate of land prices for the immediately preceeding month is higher than 130/100 of the national consumer price inflation rate, which falls under one of the following items:

(a) The area wherein a increasing ratio of monthly average land price for two months retroactive from the immediately preceding month is higher than 130/100 of the increasing ratio of national land price; and

(b) The area wherein the annual average inflation rate of land prices for one year retroactive from the immediately preceding month is higher than the annual average inflation rate of national land prices for three years retroactive.

3. Areas (including cases where the head of a central administrative agency or the head of a local government announces the relevant development projects, etc.; hereafter the same shall apply in paragraph (9)) where development projects under subparagraph 2 of Article 2 of the Restitution of Development Gains Act (including the development projects without imposition of the development charges) and housing reconstruction projects under subparagraph 2 (c) of Article 2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as "development projects,

(a) The inflation rate of house trade price for the immediately preceeding month shall be higher than 130/100 of the national consumer price inflation rate; and

(b) The inflation rate of house trade prices during the immediately preceeding month shall be higher than 130/100 of the inflation rate of national house trade prices; and

4. A prearranged area for housing site development under the Housing Site Development Promotion Act, a planned area for a multifunctional administrative city construction project under the Special Act on the Construction of Multifunctional Administrative City in Yeongi-Gongju Area for Follow-up Measures for New Administrative Capital, or other area (hereafter in this subparagraph referred to as a "rearranged area, etc.") planned to be promoted for a large-scale development project as prescribed by the Ordinance of the Ministry of Finance and Economy, which falls under any of the following items. In this case, where an administrative agency announces a candidate for a planned area, etc.

(a) Area wherein the inflation rate of house trade price for immediately preceeding month is higher than the national consumer price inflation rate;

(b) Area wherein a increasing ratio of land price for the immediately preceeding month is higher than national consumer price.

(2) The Minister of Finance and Economy may, if deemed necessary, refer the matters concerning the designation of the designated area to the Real Estate Price Stabilization Deliberation Committee without the request of the Minister of Construction and Transportation.

(3) The term "real estate prescribed by the Presidential Decree" in Article 96 (1) 6-2 of the Act means the real estate falling under any of subparagraphs 1 through 3 from among the following subparagraphs, but the house falling under subparagraph 4 shall be excluded. In this case, in applying the provisions of subparagraph 4, in case of multi-family house deemed as an independent house under the provisions of Article 155 (15), the portion partitioned to enable one household to reside independently shall be based on

1. Case of the designated area under paragraph (1) 1 and 3: Houses (including the land appurtenant thereto);

2. Case of the designated area under paragraph (1) 2: Real estates other than prescribed in subparagraph 1.

3. Case of the designated area under paragraph (1) 4: Real estate of subparagraphs 1 and 2; and

4. Housing meeting any of the following requirements (excluding officetels under subparagraph 10 (b) of attached Table 1 of the Enforcement Decree of the Building Act; hereafter the same shall apply in this Article): Provided, That housing located in the area designated and publicly notified as a rearrangement zone under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (including a project site of a reconstruction association which has obtained authorization for establishment under the Housing Construction Promotion Act before amendment by the amended Act among the Housing Act (Act No. 691

(a) Apartment under the provisions of the attached Table 1 of the Enforcement Decree of the Building Act whose exclusive area is not more than 60 square meters, and the standard market price under Article 99 of the Act at the time of transfer shall not exceed 40

(b) A tenement house and multi-household house under the provisions of attached Table 1 of the Enforcement Decree of the Building Act, whose exclusive area is not more than 85 square meters, and the standard market price under Article 99 of the Act at the time of transfer shall

(c) Single house under the provisions of the attached Table 1 of the Enforcement Decree of the Building Act whose site area is not more than 170 square meters, and the total area of house (including the portion deemed a house under the provisions of the main sentence of Article 154 (3) and the area of underground room used for exclusive use for residence; hereafter in this Article the same shall apply) is not more than 85 square meters, and the standard market price under Article 99 of the Act at the

(4) The Minister of Finance and Economy shall, when he designates the designated area under paragraph (1), announce the fact without delay, and notify the Commissioner of the National Tax Service of the contents of

(5) The Commissioner of the National Tax Service in receipt of notification pursuant to paragraph (4) shall take measures concerning the details thereof for public perusal.

(6) The designation of the designated area shall take effect from the date of public announcement of the designation under paragraph (4).

(7) Where the Minister of Finance and Economy requests the cancellation of designation of the Minister of Construction and Transportation (including cases where the head of a related central administrative agency makes a request through the Minister of Construction and Transportation) on the grounds that the causes for such designation have been as the stabilization of real estate prices in the relevant area after the designation as the designated area under paragraph

(8) The provisions of paragraphs (2), and (4) through (6) shall apply mutatis mutandis to the case of cancellation under the provisions of paragraph (7).

(9) The designated area under the provisions of paragraph (1) shall be designated by the administrative district of the Special Metropolitan City, a Metropolitan City, a Do, or a Si/Gun/Gu: Provided, That with respect to the area referred to in paragraph (1) 3 and 4 and the permission area under the provisions of Article 117 of the National Land Planning and Utilization Act, only

(10) With respect to some administrative districts falling under the administrative districts, which have been or are scheduled to be designated as the designated area, notwithstanding the provisions of paragraph (9), they may be excluded from the relevant designated area after deliberation by the Deliberation Committee on Real Estate Price Stabilization in consideration

(11) The statistics of the inflation rate of national consumer price, the inflation rate of house trade price, the inflation rate of national house trade price, the inflation rate, and the inflation rate of national land price under paragraph (1) shall be based on the statistics approved by the Commissioner of National Statistical Office with respect to the statistical decision made by the Commissioner of National Statistical Office under Article 8 of the Statistics Act. In this case, where there exists only the statistics of the inflation rate of apartment house trade price under the provisions of attached Table 1 of the Enforcement Decree of the Building

(12) In applying the provisions of paragraph (1), where the number corresponding to 130/100 of the inflation rate of the national consumer price as provided for in subparagraph 1 through 3 of the same paragraph, the number corresponding to 130/100 of the inflation rate of the national house trade price, or the number corresponding to 130/100 of the inflation rate of the national land price is less than 5/1,000 respectively, it shall be made 5/1,00, and where the number corresponding to the inflation rate of national consumer price as provided for in subparagraph 4 of the same

Article 85 of the former Restriction of Special Taxation Act (amended by Act No. 7839 of Dec. 31, 2005) (Special Taxation for Transfer Income Tax on Real Estate for Public Works in Designated Area)

The transfer value and acquisition value under the provisions of Articles 96 (1) 6-2 and 97 (1) 1 (a) (proviso) of the Income Tax Act may be based on the standard market price in case where a resident acquires real estate in the designated area under the provisions of Article 96 (1) 6-2 of the Income Tax Act, before December 31, 2006 (including the case of expropriation; hereafter in this Article the same shall apply), and then transfers it to the relevant project operator (including the case of expropriation; hereafter in this Article the same shall apply) under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor or other Acts, notwithstanding the provisions of Articles 96 (1) 6-2 and 97 (1) 1 (a) of the same Act, if such date of publication is within 2 years retroactively from the date of public announcement in the official gazette or the date of public announcement in the official bulletin: Provided, That the same shall not apply to the case where the transfer value and acquisition value under the provisions of the same Act are reported as the actual market price:

1. The date of designation of the scheduled housing site development area in accordance with Article 3 above;

2. The date designated as the industrial complex under Article 7-3 of the Industrial Sites and Development Act;

3. The date on which the multi-regional development area is designated under Article 4 of the Balanced Regional Development and Support for Local Small

4. Date of announcement of a compensation plan under Article 15 of the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor (referring to the United States Armed Forces stationed in the Republic of Korea under the Mutual Defense Treaty between the Republic of Korea and the United States

5. In cases of the immovables transferred under other Acts than subparagraphs 1 through 4, the planned area and area, designation of the development area, public announcement of a compensation plan and other similar days as prescribed by the Presidential Decree for the project area to which the immovables belong under the relevant Acts.

Addeds (No. 7322, 31)

Article 12 (Application of Special Cases of Taxation of Transfer Income Tax on Real Estate for Public Works Projects in Designated Area) The amended provisions of Article 85 shall apply from the portion at which the deadline for the final return of transfer income becomes due after this Act enters into force.

Article 45-2 of the Framework Act on National Taxes

(1) Any person who has filed the tax base return within the legal return term, may request from the chief of the competent tax office the decision or rectification of the tax base and amount of the national tax (where the decision or rectification is made pursuant to the provisions of each tax-related Act, it refers to the tax base and amount of tax after such decision or rectification is made) which has been filed for the first return and revised return,

1. Where the tax base and tax amount entered in the tax base return (referred to the tax base and tax amount after such decision or correction is made, if such decision or correction is made under the provisions of each tax-related Act), exceed those to be returned under the tax-related Acts;

2. Where the deficit amount or refundable tax amount entered in the return of tax base (referred to the deficit amount or refundable tax amount after such decision or correction is made, in case where such decision or correction is made pursuant to the provisions of each tax-related Act), is short of the deficit amount or refundable

§ 51. Appropriation and refund of national tax refund

(1) If a taxpayer erroneously pays any national tax, additional dues or disposition fee for arrears, or there is an amount of tax to be refunded under the tax-related Acts (where there is any amount of tax to be deducted from the amount of tax refundable under the tax-related Acts, referring to the remaining amount after deduction), the head of a tax office shall immediately determine such overpaid or erroneously paid amount or the amount of tax to be refunded as a refund of national tax. In such cases, any

[Supreme Court Decision 2007Du22726, Oct. 27, 2008]

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

Article 45-2 (1) 1 of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007; hereinafter the same) provides that where the tax base and tax amount entered in the tax base return exceed the tax base and tax amount to be reported under the tax-related Acts, a request for the correction of the tax base and tax amount to be reported first and revised, and Articles 96 (1) and 97 (1) 1 (a) of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the same shall apply) provide that the transfer value and acquisition value of assets under Article 94 (1) 1 and 2 shall be based on the standard market value: Provided, That Article 96 (1) 6 of the former Act provides that one of the actual transaction values at the time of transfer and acquisition shall be one of the cases where the transferor reports the actual transaction value at the time of transfer and the period of final return, Article 6-2 of the former Act shall be included 10. 3. 163.

In light of the contents and purport of the provisions of the former Income Tax Act and the former Restriction of Special Taxation Act concerning the method of calculating the transfer value and acquisition value, and the purpose of the special provisions of this case is to facilitate the public service by reducing the taxpayer's tax burden and promoting the smooth implementation of the public service by allowing the special provisions of the transfer income tax on real estate for public service within the designated area. The provisions of Article 85 of the former Restriction of Special Taxation Act shall be interpreted to include the transfer value and acquisition value based on the standard market price in principle in the case of the transfer of real estate for public service even if the real estate within the designated area is located within the designated area: Provided, That if the taxpayer files a report on the actual transaction value under the proviso of Article 96 (1) 6 and Article 97 (1) 1 (a) of the former Income Tax Act in order to prevent any disadvantage

After finding the facts as stated in its reasoning, the court below determined that the transfer of the real estate in this case was unlawful on the ground that the Plaintiff did not file a final return of transfer income tax base by calculating the transfer value and acquisition value based on the actual transaction value higher than the standard market price pursuant to Articles 96 (1) 6-2 and 97 (1) 1 (a) (proviso) of the former Income Tax Act with respect to the transfer of the real estate in this case, which is the real estate for public services within the designated area. Since the final return of transfer income tax base for the real estate in this case ( May 31, 2005) was due after January 1, 2005, the special provision of this case applies to the transfer of the real estate in this case. Accordingly, the Plaintiff did not file a final return of transfer value and acquisition value based on the standard market price and the final return of transfer income tax base by the final return of transfer income tax base, and thus, the tax base and tax amount for the first scheduled return constitutes grounds for filing a request for correction under the tax law.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error of law by misunderstanding legal principles as alleged in the grounds of appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.