Early High Court Decision 2008J0926 (No. 28, 2008)

Whether there is no officially assessed individual land price

Where there are special circumstances to deem it unreasonable to regard the officially assessed individual land price of the land before partitioning as the land price after partitioning due to a change in the characteristics of the land, which serves as the basic data for calculating the officially assessed individual land price, the land after partitioning shall correspond to the

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 207,03,240 out of KRW 248,660,573 of the transfer income tax for the year 2005 against the Plaintiff on December 1, 2007 and the imposition of KRW 20,70,320 of the resident tax is revoked.

1. Details of the disposition;

A. On April 4, 2005, part of AAAA Dong 148 large scale 985 square meters (hereinafter referred to as “co-number 1 land”) was divided into 148-1 large scale 322 square meters under the same Act (hereinafter referred to as “divided one land”), and on April 4, 2005, part of AAA Dong 149-20 large scale 541 square meters (hereinafter referred to as “co-number 2 land”) was divided into 149-23 large scale 273 square meters under the same Act (hereinafter referred to as “divided two land”) and the divided land was combined into AAA Dong 148-1 large scale 595 square meters (hereinafter referred to as “the instant land”).

B. On May 30, 2005, the instant land was released from a development-restricted area pursuant to a decision and public notice of an AA Urban Management Planning (No. 2005-159 of the Gyeonggi-do Public Notice) on May 30, 200, and was designated as an urban area, Class 1 district unit planning zone, and Class 1 general residential zone so that the instant land

C. On May 30, 2005, the Plaintiff entered into a sales contract with BB and KimCC on the instant land, and completed the registration of ownership transfer on June 2, 2005.

D. On August 31, 2005, the Plaintiff reported the transfer income tax calculated according to the ratio of the size of the annexation of the instant land by applying the officially assessed individual land price (457,000,000 square meters and 546,000 square meters/1 square meters for a piece of land as of May 31, 2005) of one and two parcels of land, which are one parcel numbered prior to the combination, combination, and consolidation of the instant land.

E. On December 1, 2007, the Defendant: (a) calculated the transfer value by applying the appraisal of the land in this case to the Plaintiff on the ground that the land in this case constitutes a land without a publicly assessed individual land price as a "land partitioned or merged under the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18988, Aug. 5, 2005; hereinafter the same)" under the proviso of Article 99(1)1 (a) of the former Income Tax Act; and Article 164(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18988, Aug. 5, 2005; hereinafter the same shall apply); and (b) calculated the transfer value by applying the appraisal of the land in this case to the two appraisal agencies; and (c) calculated the transfer value by applying the land price of KRW 1.5 million and/or 1.5 million for the Plaintiff.

(f) Changes in the number 1, 2 and the officially assessed individual land price of the instant land shall be as follows:

[Ground of recognition] Facts without dispute, Gap evidence 1 through 4 (including paper numbers), Eul evidence 3 and 4 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

According to Article 99 (1) 1 (a) of the Income Tax Act, the transfer price of land shall be calculated based on the publicly assessed individual land price and the publicly assessed individual land price shall be assessed based on the method prescribed by the Presidential Decree only on the land for which the publicly assessed individual land price is not publicly notified. According to the purport of Article 164 (3) of the Enforcement Decree of the Income Tax Act, where the land is acquired or transferred before a new standard market price is publicly notified in applying Article 99 (1) 1 (a) of the Act, it shall be determined based on the immediately preceding standard market price. Thus, the publicly assessed individual land price of the land before subdivision shall be deemed the publicly assessed individual land price of the instant land, on the premise that the land in this case does not have any publicly notified individual land price under the Income Tax Act and the Enforcement Decree of the Income Tax Act.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) In light of the language and purport of Article 99(1)1 (a) of the former Income Tax Act and Article 164(1)3 of the former Enforcement Decree of the Income Tax Act, the above provision delegates the method of assessing the value of land without a publicly assessed individual land price to the Enforcement Decree of the Income Tax Act, and the fact that if a publicly assessed individual land price is publicly announced as to a certain land, it cannot be seen as a land without a publicly notified individual land price solely on the ground that the land category has been changed under the cadastral law, “land without a publicly notified individual land price” as referred to in the above provision refers to a land in a case where, even if a publicly notified individual land price as to a land before a land category has been publicly notified, the land category has changed due to a land category change, and thus it is unreasonable to regard the land as a basis for calculating the publicly assessed individual land price before a land category change. Likewise, if there are special circumstances to regard the land price after a division as a land price after a divided under Article 99(1)14(1)1)1 of the former Income Tax Act.

(2) We examine the following facts: (a) If the officially assessed individual land price of the land before the land was publicly announced at the time of the division, the officially assessed individual land price of the land before the division can be applied in principle; (b) as such, the divided land cannot be deemed land without the officially assessed individual land price under the Income Tax Act. However, in the case where the land was combined with the land in this case, the officially assessed individual land price of the one divided land and the two divided land prices of the two divided land cannot be deemed the officially assessed individual land prices of the land before the division. (b) Since the officially assessed individual land price of the land in this case was first publicly announced on October 31, 2005, the individual land price of the land in this case was not publicly announced at the time of the transfer; (c) the newly assessed individual land price of the land in this case was newly announced on May 30, 2005; and (c) the newly assessed individual land price of this case and the newly assessed individual land price of this case changed to the present category of land due to the newly assessed individual land price of this case.

Therefore, the instant land constitutes land without a publicly assessed individual land price as provided in the proviso of Article 99(1) of the former Income Tax Act and Article 164(1)2 and 3 of the former Enforcement Decree of Income Tax Act. Thus, the instant disposition is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.