Whether the act of low-price rental and the calculation of legitimate tax amount is lawful by retroactive appraisal fees;

If the value of the rent was deferred to the court through the retroactive appraisal, it is not the case where the market price is unclear unless there is a special reason not to employ the said appraisal.

Article 41 [Calculation by Wrongful Acts] of the Income Tax Act

The appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

We examine the grounds of appeal.

1. cite the judgment of the first instance; and

The reason why a member should explain this case is that "the disposition of this case" in part 3 of the judgment of the court of first instance is "the disposition of this case (excluding the part of resident tax to be earned above because the plaintiff withdraws from the court of first instance)", and the part No. 5 of the judgment of the court of first instance, which is not more than 5 of the judgment of the court of first instance, is the same as the reasoning of the judgment of the court of first instance, and therefore, it is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the

2. Parts to be dried;

“(2) Judgment on the second argument of the Plaintiff

(A) The expected interest rate means the ratio of profits expected to be incurred in the acquisition of real estate to be leased, which is a basic price of the pertinent real estate, and the expected interest rate means the ratio of profits expected to be incurred in the acquisition of real estate by means of the method under the so-called hostile method multiplied by the said expected interest rate. In principle, it does not vary according to the location, type, items, etc. of individual land. It is determined by considering the rate of national and public bonds, long-term loans from banks, long-term loan interest rates from banks, long-term loan interest rates from banks, normal real estate transaction profit rates, State Property Act and Local Finance Act, etc. Therefore, as long as the basic price has already been assessed and decided as taking into account the actual use of each individual real estate in calculating the rental interest rate, it is not necessary to take into account the said actual use rate again (see Supreme Court Decisions 200Da12020, Jun. 29, 200; 200Da31483, Oct. 25, 2002).

(B) Facts of recognition

The following facts can be acknowledged by taking into account the results of the inquiry of the fact to the Director of the Korea Appraisal Board of the first instance, and there is no counter-proof, otherwise.

(1) The Korean appraiser who is entrusted with the appraisal of rent by the court of first instance shall not seek the net profit expected to be calculated on the instant land, and since it is generally difficult to capture similar lease cases, the appraisal of rent was determined by using the appropriate method of calculating rent by adding the amount of the basic cost of the instant land as of the time of lease price calculated under the Public Notice of Values and Appraisal of Land, etc. Act and the Regulations on Appraisal of Land, etc. to the expected interest rate and the expenses necessary for lease again.

② Accordingly, in order to determine the basic price of the instant land, the said appraiser stated as the comparative standard land that the instant land and the specific use area (general residential area) and land category are identical, and that the current utilization and surrounding environment, etc. are commercial land (the site for a golf practice range) located within a 00-Gu 00 general residential area with high comparison, and determined as 2.4% by comprehensively comparing and comparing the said matters.

③ However, in the event that the expected interest rate, which did not take into account the location of the instant land and the actual use thereof, was applied to the fact-finding inquiry on whether the reasonable rental income is certain, the appraiser, as to the calculation of the expected interest rate, shall comprehensively review the data calculated at 6.06-12.65% (including the depreciation costs, etc. of buildings) in the case of combined real estate of land and buildings, namely, 6.06-12.65% in the case of land (including the depreciation costs, etc. of buildings) and 0.91% in the case of land (b), 2.4% in consideration of the environment in which the instant land is located, the level of rent, practice, etc. of real estate market, and the contents of Article 26(1) of the Enforcement Decree of the State Property Act, Article 23 of the Seoul Special Metropolitan City Ordinance on Public Property Management, and Article 49(4) and attached Table 7-2 of the Compensation Evaluation Guidelines, and the expected interest rate in the market and neighboring areas from 1998 to 202.

④ Meanwhile, for residential purposes under Article 26(1)4 of the Enforcement Decree of the State Property Act, the expected interest rate is 50/1,000 in cases where the expected interest rate is 25/1,00 and 50/1,00 in other cases. On the other hand, the standards for applying the commercial expected interest rate of land for residential use in attached Table 7-2 of the Compensation Evaluation Guidelines are 5-8% in cases of maximum effective use, 2-5% in cases of temporary use, 2-3% in cases of land for residential use, 4-7% in cases of maximum effective use, 2-4% in cases of temporary use, and 1-2% in cases of land for residential use.

(C) Determination

① According to the above facts, the above appraiser is deemed to have determined the expected interest rate for calculating the rent of the land of this case as 2.4% by integrating and attending the expected profit rate of the neighboring land of this case as a normal real estate transaction profit rate from the time of the first instance, commercial banks, and the above compensation evaluation guidelines, and considering the expected profit rate of the neighboring land of this case as 2.4%. The above appraiser's expectation rate of using the surrounding land of this case cannot be deemed to have taken into account the location, type, article, use rate, etc. of the land of this case. Thus, the above appraiser's expectation rate of using the above land of this case cannot be deemed to have erred by the appraisal method which is the basis for calculating the rent of this case's land of this case (the above appraiser's calculating the expected interest rate of 2.4% in consideration of the location, kind, article, use rate, etc. of the above land of this case, and even if the above appraisal standard is no more than the above appraisal standard of the above land of this case's land of this case, the above appraisal method should not be accepted.

(2) On the other hand, if the value of the rent for the land of this case was presented to the court through the appraisal as above, it is clear that the market price is not clear, barring any special circumstance, unless the above appraisal is available, the rent calculated by calculating the method of assessment other than the above appraisal price shall not be deemed the base price (see Supreme Court Decision 93Nu19146, Aug. 26, 1994). Accordingly, as seen above, the determination of whether the rent for the land of this case is a low-price rental act and the legitimacy of the disposition of this case shall be made by calculating the reasonable amount of the rent as seen above.

③ 그렇다면, 위 감정인이 산정한 보증금을 고려하여 산정한 연간 임대료인 별지2 기재 ㉣항 금액(다만 뒤에서 보는 바와 같이 1998년분은 1,2월분을 제외한 것이다)에 원고가 소외 회사로부터 받은 임대보증금 30,000,000원에 관해 정기예금이자율을 고려하여 산정한 간주임대료를 합산한 별지4 기재 ㉥항 토지적정임대료 중 2002년분을 제외한 1998년 내지 2001년분은 피고가 이 사건 처분의 기초로 한 별지2 기재㉡항 경정수입금액(임대료)보다 적은 액수임이 명백하므로, 위 2002년분을 제외한 1998년 내지 2001년의 각 부가가치세 및 종합소득세에 관하여는 별지4 기재㉥항 토지적정임대료를 기준으로 다시 정당세액을 산정하여 이 사건 처분의 적법여부를 판단하기로 한다{다만, 위 2002년도의 토지적정임대료 80,196,600원은 피고가 원고에 대하여 한 이 사건 2002년 부가가치세 및 종합소득세를 부과처분의 기초가 된 경정 수입금액(임대료)인 70,861,160원보다 다액이어서, 위 토지적정임대료인 80,196,000원에 의하여 2002년의 부가가치세 및 종합소득세의 다시 산정할 경우 그 정당세액은 이 사건 2002년 부가가치세 및 종합소득세의 부과처분의 세액을 초과할 것임이 계산상 분명하므로, 이 사건 2002년의 부가가치세 및 종합소득세의 부과처분은정당한 세액의 범위를 넘지 않는 것으로서 적법하다 할 것이고, 원고 또한 별지4 기재 ㉥항 토지적정임대료의 범위내에서 과세되어야 한다는 주장을 하면서도 이 사건 2002년의 부가가치세 및 귀속 종합소득세에 관해서는 별도로 다투지 아니하고 있다}.

(3) Judgment on the third assertion by the Plaintiff

On the other hand, the non-party company, the other party to the plaintiff's transaction, is recognized as necessary expenses only for the actual rent based on a low rate. Therefore, in imposing tax on the plaintiff, it is true that there is a conflict between the difference between the normal rent and the actual rent, even though it is imposed as the plaintiff's profit as a result of the wrongful calculation denial, and it is not recognized as the cost in the above corporation

However, in a case where the taxpayer brings a tax reduction unfairly due to a transaction without economic feasibility with a related party, the rejection of wrongful calculation is a reconcept of a new transaction, etc. which is rational, and based on this, the tax authority reconciates the tax payer’s income and the tax amount, and imposes a tax amount on the basis of this, and it does not deny the judicial effect of the original transaction. As to the other party, the tax is imposed according to the original transaction without any separate provision that invokes the effect of restructuring of the transaction under individual tax laws, and is not based on the reconcied transaction relationship by the tax authority. Accordingly, it is difficult to avoid any conflict between the tax imposed on the taxpayer who made wrongful calculation due to a reconciated transaction and the tax imposed on the other party due to the original transaction. Accordingly, such circumstance cannot be justified in light of the ideology of avoidance of wrongful calculation that the fairness of tax burden

In the instant case, the Plaintiff’s assertion is merely the purport that the other party to the tax obligor’s wrongful calculation is taxable according to the actual transaction, and thus, the denial of wrongful calculation should not be conducted. This is not only denied the system of wrongful calculation itself, but also cannot be permitted for the same reason as seen above. Thus, the Plaintiff’s assertion is groundless.

(4) The calculation of the reasonable amount of value-added tax and global income tax for the year 1998 to 2002 of this case

(A) The Defendant calculated the rent of the instant land at KRW 131,750,00 for one year from March 1, 1998, and calculated the revenue omitted in 198 (the same paragraph) after deducting the amount stated in the attached Table 2 from the rent revenue of 1998 to the amount stated in the attached Table 2 from the above rent revenue of 1998. However, the Plaintiff started to lease the instant land from March 1, 1998 to the non-party company. As seen earlier, the value-added tax and global income tax for 1998 from March 1, 1998 to December 31 of the same year are 64,80,00 [the land rent for the instant land + 62,100,000,000 won for the above ten-month period plus 62,520,000 won for the rent plus 100,700,000 won for the above year (the above amount shall be calculated as rent for the Plaintiff calculated as KRW 100,700,007).

(B) Specific amount of legitimate tax;

When calculating the reasonable tax amount of value-added tax (including additional tax) in 198 or 2001 based on the land fixed rent specified in attached Table 4, each amount indicated in attached Table 5 (i.e., the legitimate tax amount of tax for the first time listed in attached Table 1), and when calculating the reasonable tax amount of global income tax (including additional tax) for the year 2001, the amount listed in attached Table 6 is the amount listed in attached Table 13 (i.e., the legitimate tax amount for the second time listed in attached Table 1).

Meanwhile, the disposition of imposition of value-added tax and global income tax for the year 2002 is lawful as it does not exceed the legitimate scope of tax as seen above, and the plaintiff also does not dispute it separately. As such, the legitimate tax amount of value-added tax and global income tax for the year 2002 is not calculated on the basis of the material material material and material and material and the land rent specified in the attached Table 4, but calculated on the basis of the defendant's corrected income amount, the amount equivalent to the amount of the defendant's disposition of imposition (a

D. Sub-committee

따라서 피고가 2003. 8. 1. 원고에 대하여 한 이 사건 처분 가운데 위 각 정당세액을 초과하지 않는 부분은 적법하다 할 것이고, 위 각 정당세액을 초과하는 부분 즉 1998년 내지 2001년의 별지1 기재㉠항 부가가치세 중 별지1 기재 ㉢항 당심 정당세액을 각 초과하는 부분, 1998년 내지 2001년 귀속의 별지1 기재 ㉣항 종합소득세 중 별지1 기재 ㉥항 당심 정당세액을 각 초과하는 부분은 위법하므로 각 최소되어야 할 것이다.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims shall be dismissed without merit. Since the judgment of the court of first instance is unfair with different conclusions, it is so decided as per Disposition by changing the judgment of the court of first instance which was partially accepted by the plaintiff's appeal.