Ministry of Calculation of Unfair Conduct

The case holding that transfer of value below the standard market price to a person with a special relationship constitutes an unfair act.

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

The disposition of imposition of KRW 120,805,350 on November 1, 1995 by the Defendant against the Plaintiff on November 1, 1995 shall be revoked. All of the remaining claims of the Plaintiff are dismissed. The costs of the lawsuit shall be five minutes, and three parts shall be borne by the Plaintiff and the remainder by the Defendant.

1. Details of the disposition;

The following facts are either in dispute between the parties or in full view of the descriptions of evidence Nos. 1, 2, 3, 2, 7, 3, 1, 3, 5, and 8-1, 2, 3, 1, 2, 3, 4, 3, and 1, 3, 3, and 3, and 1, 5, and 8-1, 1, 2, 3, and 3, and 5

가. 원고 회사는 1991. 5. 8. 학교법인 ㅇㅇ학원으로부터 ㅇㅇ시 ㅇㅇ구 ㅇㅇ동 ㅇㅇ번지 대 5,907평방미터를 원고 회사의 대표이사인 소외 신ㅇ준 및 소외 장ㅇ희와 공동으로(원고 지분: 5907분의 5203, 신ㅇ준 지분: 5907분의 685, 장ㅇ희 지분: 5907분의 19) 매입하였다가 1992. 2. 26. 위 각 토지를 분할하여 분할된 토지중 ㅇㅇ동 ㅇㅇ번지 대1,743평방미터를 위 신ㅇ준의 단독 소유로 각 등기함으로써 분할전 토지에 대한 위 신ㅇ준의 지분 비율에 따른 토지 면적인 685평방미터보다 합계 1,058평방미터가 늘어난 토지가 위 신ㅇ준에게 귀속・양도되었다.{원고는 같은 구 ㅇㅇ동 ㅇㅇ번지의 10 대155평방미터에 대하여도 위 신ㅇ준과 공동으로(원고 지분 155분의62, 신ㅇ준 지분 155분의 93) 매수・분할하여 분할된 ㅇㅇ동 ㅇㅇ번지의 65 대 89평방미터에 관하여 위 신ㅇ준의 단독 소유로 각 등기함으로써 당초의 위 신ㅇ준의 지분비율에 따른 93평방미터보다 4평방미터 줄었다 하여 원고가 위 신ㅇ준에게 귀속된 토지중 늘어난 토지의 면적이 1,054평방미터라고 주장하나 위 4평방미터 감소 부분은 위 신ㅇ준이 이 사건 토지와는 별개의 토지인 위 ㅇㅇ동 ㅇㅇ번지의 10 토지지분을 원고에게 양도한 것으로서 원고도 세무신고시 이를 누락하였으며 피고도 이 사건 부과처분을 함에 있어 이를 고려하지 않았으므로 이 사건에서는 논외로 하기로 한다.}

"After 193.3. 192, the company calculated the above tax base of 190 - 1,058 - (hereinafter "land of this case") - 65,08 - 9 - 1,00 - 9 - 1,000 - 9 - 1,000 - 9 - 1,000 - 9 - 1,000 - 9 - 1,000 - 9,000 - 1,000 - 5,000 - 1,000 - 9,000 - 9,000 - 1,000 - 9,000 - 1,000 - 9,000 - 9,000 - 1,000 - 9,000 - - 1,000 - 9,01.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) As to the denial of unfair conduct and calculation

The purpose of Article 20 of the Corporate Tax Act is to prevent unfair practices and calculation denial system under the provision of Article 20 is to prevent the act of tax avoidance, i.e., having no economic rationality between the corporation and the person in a special relationship with the corporation. The land in this case does not have access roads at the time of transfer, and the price of the land in this case was not formed as the above acquisition cost due to incomplete form of the land. Moreover, the transfer price of the land in this case reported by the Plaintiff was calculated by adding the acquisition tax and the capital expenditure for 571,000 won per actual acquisition price for 10 months as the price after the acquisition of the land in this case, which is the price after the acquisition of the land in this case, which is the fair market price of the land in this case. Thus, the transfer price of the land in this case by the Plaintiff company to the new - company

Even if the transfer value is less than the market price, it is not clear that the market price of the instant land is not clear, the Defendant’s calculation of the transfer value based on the average 950,000 won per square meter, which is the publicly assessed individual land price, much more than the actual market price, by applying Article 16-2 of the Enforcement Rule of the Public Notice of Values and Appraisal of Lands, etc. Act and Article 10 of the Public Notice of Values and Appraisal

(2) As to the special surtax:

Article 59-2 (3) of the Corporate Tax Act, which is a provision on the basis of calculating the tax base of the special surtax, only provides that the tax base shall be assessed based on the actual transaction price or standard market price, and there is no difference with the provision on the wrongful calculation return under Article 20 of the same Act, and Article 124-2 (7) of the Enforcement Decree of the Corporate Tax Act is only based on the delegation under Article 20 of the Corporate Tax Act and Article 46 (1) of the Enforcement Decree of the same Act. Thus, in calculating the special surtax under Article 59-2 (3) of the Corporate Tax Act, it shall be calculated based on the actual transaction price, if there is any actual transaction price, and even if it is necessary to deny the wrongful calculation under Article 20 of the Corporate Tax Act because the value of the interpreter is lower than the market price, it shall not be calculated based on the market price or the publicly assessed individual land price. In calculating the special surtax by the

(b) Relevant statutes;

Under the conditions as prescribed by the Presidential Decree, Article 20 of the Act provides that the Government may calculate the income amount of a domestic corporation for each business year of the juristic person in case where it is deemed that the tax burden on the income amount of the juristic person has been unjustly reduced in the transaction with the related parties as prescribed by the Presidential Decree, and Article 46 (1) of the Enforcement Decree provides that the related parties under Article 20 of the Act refer to the related parties under the following subparagraphs, and Article 1 provides that investors (excluding minority shareholders under Article 31-2 of the Enforcement Decree; hereinafter the same shall apply) and their relatives. Article 46 (2) of the Enforcement Decree provides that "the cases where it is deemed that the tax burden has been unjustly reduced" means cases falling under any of the following subparagraphs, while Article 20 of the Enforcement Decree provides that the Government purchases the assets from the investors under subparagraph 4 or transfers the assets to the investors, etc. below the market price:

Meanwhile, Article 59-2 (1) of the Public Notice of Values and Appraisal of Lands, etc. Act provides that the tax base of special surtax shall be gains on transfer from the transfer of land, buildings, rights to real estate, stocks or equity shares (hereinafter “land, etc.”) as determined by the Presidential Decree, and paragraph (3) of this Article provides that gains on transfer shall be the amount obtained by subtracting the following amounts from the transfer value: Provided, That where the transfer value and acquisition value are unclear, the standard market price at the time of transfer and that at the time of acquisition shall be the transfer value and the standard market price at the time of acquisition, respectively. Article 124-2 (2) of the Enforcement Decree of the Public Notice of Values and Appraisal of Lands, etc. Act provides that "acquisition value shall be the aggregate of the acquisition value calculated by applying mutatis mutandis Article 48 (2) of the Act (excluding an amount exceeding the market price by wrongful calculation), interest and capital expenditure for the construction fund, and Article 124-2 (7) of the Enforcement Decree of the Public Notice of Values and Appraisal of Lands, etc. Act provides that the market price shall be determined by improper.

C. Determination

(1) Comprehensively taking account of the purport of pleading No. 1-4, No. 2-1 to No. 2-4, Non-party 1-6, Non-party 2 is the representative director of the plaintiff company. The land of this case is constructed if Non-party 1 acquired non-party 6's land which is hard to be constructed as a master of the plaintiff company. The land of this case is actually constructed after acquiring the land of this case and completed the sale of multi-family housing. The neighboring land of this case was 5,00,000 won or 6,000 won per square year after 1991 and 6,000 won for 60,000 won for 60,000 won for 60,000 won for 60,000 won for 1,515,150 won for 1,818,180 won for 60,000 won for 60,000 won for 19,000 won for 190.

(2) As to the special surtax:

(A) Under the interpretation of Article 59-2 (3) of the Act, the calculation of gains on transfer, which is the tax base of special surtax, shall be based on both the actual transaction value and the transfer value and the acquisition value are not clear, and in cases where either of them is unclear, both the transfer value and the acquisition value shall be based on the standard market price as determined by the Presidential Decree, and in cases where the actual transaction value is clear, the transaction value shall be based on the actual transaction value and the transaction value shall not be deemed to be the calculation of gains on transfer based on the standard market price. Thus, in applying Article 124-2 (9) of the Enforcement Decree of the Act Article 59-2 (3) of the Act, where either of the transfer value or acquisition value is unclear, the unclear price shall be the amount converted by the following formula. Thus, it is not consistent with the provisions of the mother Act, and there is no basis to delegate the methods of calculating gains on transfer. Thus, this provision shall be deemed to have no effect as a violation of the principle of no taxation without law (see Supreme Court en banc Decision 93Nu 2939, Jun. 19, 19993).

(B) Therefore, since the market price or actual transaction price at the time of the transfer of the land in this case is unclear, the tax base of the special surtax on the transfer margin of the land in this case should be calculated based on the transfer price or the officially assessed individual land price, notwithstanding Article 124-2 (9) of the above Act which is null and void, it is unlawful to calculate the tax base and impose the special surtax on the basis of the actual transaction price reported by the Plaintiff, which is a small amount than the officially assessed individual land price at the time of the acquisition. Thus, it is unlawful to calculate the transfer margin of the land in this case based on the amount of KRW 830,00 per square meter, the officially assessed individual land price at the time of the transfer, and KRW 950,00 per square meter per the ordinary land price at the time of the acquisition of the land in this case, such transfer margin can not be imposed as -4,630,841 special surtax as stated in the separate special surtax assessment sheet.

(3) As to the corporation tax and rural special tax belonging to 1994:

The plaintiff's report to the defendant that he transferred the land of this case at 667,613 won per square meter to the above new -- - was that the transfer of the land of this case to the person with special relation under Article 20 of the Act and Article 46 (1) and (2) of the Enforcement Decree is an unfair act and calculation that unreasonably reduces the plaintiff's tax burden on the plaintiff's income. In addition, in the case where a corporation transfers its real estate, the difference between the book value and transfer value of the land shall be subject to the consultation under Chapter 2 of the Corporate Tax Act as to the difference between the acquisition value of the land and the transfer value of the land, and the amount calculated by multiplying the acquisition value of the land by the rate and holding period under Chapter 4 2 of the Corporate Tax Act as well as the special surtax under Chapter 9 of the Corporate Tax Act, which affected both the corporate tax of the consultation and special surtax, and the transfer value of the land of this case shall be calculated by deducting the total amount of losses from the total acquisition value of each business year to 94 of the above new special surtax (the acquisition value of the land of this case shall be calculated as 940.

3. Conclusion

Therefore, the part of the plaintiff's claim seeking the revocation of the disposition of imposition of the special surtax for the year 192 among the claims of the 1992 is justified, and all of the applications of Article 8 (2) of the Administrative Litigation Act and Articles 89 and 92 of the Civil Procedure Act are dismissed for the ground that the part seeking the revocation of each disposition of imposition of the corporate tax for the year 194 and special surtax for the rural development