Seocho 208west 1661 (Law No. 25, 2009)

Where the difference in exchange is recorded in the exchange contract by arbitrarily evaluating the value of the subject matter of exchange;

Where the difference in the exchange is entered in the exchange contract by arbitrarily evaluating the value of the subject matter of exchange, the method of estimated investigation according to the order of the amount of transaction example and appraisal shall not be recognized or confirmed. In this case, the subject of the estimated investigation shall be the transfer assets other than the acquired assets of exchange.

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

Article 94 of the Income Tax Act, Article 114 of the Income Tax Act

Article 176 of the Enforcement Decree of Income Tax Act

1. The part concerning the claim for revocation of resident tax disposition among the lawsuit of this case shall be dismissed, respectively.

2. The Defendant’s imposition of capital gains tax of KRW 627,089,010 on February 5, 2008 against the Plaintiff on 2002 and the imposition of capital gains tax of KRW 320,123,460 on 204 shall be revoked.

3. Ten minutes of the lawsuit shall be borne by the plaintiff and the remainder by the defendant.

The Defendant’s imposition of capital gains tax of KRW 627,089,010 on February 5, 2008 and KRW 62,708,90 on resident tax of KRW 620,123,460 on resident tax of KRW 320,123,460 and KRW 32,012,340 on resident tax of KRW 204 shall be revoked.

1. Details of the disposition;

(a) Disposition on imposition of capital gains tax of 2002 627,089,010 won and resident tax of 62,708,90 won;

(1) On January 18, 2002, the Plaintiff acquired and owned 2,00,000,000 square meters of the LL-dong LL-dong 221,292.5 square meters of the land and 3,339.7 square meters of the land (hereinafter referred to as “L-dong real estate”) from the non-party Hacheon-gu JJdong J-dong J-dong 173-5 and 630.7 square meters of the land and 2,241.8 square meters of the land (hereinafter referred to as “non-party 1”) from the non-party 200, and entered into an exchange contract with the non-party 170,000,000 won with the non-party 173-5 and the non-party 200,0000 square meters of the forest land (hereinafter referred to as “Y-dong residential land”) within 00,000,000 won under the contract with the non-party 17,5000.

(2) Under the first exchange contract, on August 19, 2002, the Plaintiff transferred the registration of transfer of ownership with respect to the LLdong real estate to Nonparty YG, and Nonparty YG transferred the same to the Plaintiff on September 13, 2002 after completing the registration of transfer of ownership in the Plaintiff’s name with respect to JJdong commercial building on April 9, 2003, and on April 2003, the Plaintiff completed the registration of transfer of ownership with respect to the FFri forest land under the Plaintiff’s name, and completed the registration of transfer of ownership with respect to the FFri forest land on around 2003, as the Plaintiff was unable to complete the transfer of the house within the due date. Accordingly, the Plaintiff completed the registration of transfer of ownership with respect to the FFriland on the ground of 140.06 square meters of the RR-dong RFri 325-7 large 472 square meters of the land in Gyeonggi-do, and completed the registration of transfer to the Plaintiff.

(3) On October 30, 2002, the Plaintiff filed a preliminary return on capital gains tax on the purport that there is no capital gains tax payable for the year 2002 on the grounds that there is no capital gains tax since it is more necessary expenses than the gains from transfer calculated by making the transfer value of the LLdong real estate 2,050,000,000, and the acquisition value is 2,000,000 won according to the actual transaction amount.

(4) After that, the Defendant rendered a disposition to additionally correct and notify the actual transfer value according to the estimated taxation (sale example value, standard market value, etc.) of LLdong real estate amounting to 3,043,450,600 won (JJdong commercial building’s transaction example value of 1,787,726,60 won, the actual transaction value of AAAri forest land amounting to 920,000,726,000 won, and the standard market value of 85,726,000 won of house owned by the FFri, respectively. On February 5, 2008, the Defendant issued a disposition to impose capital gains tax of 627,089,010 won, resident tax of 62,708,90 won, and resident tax of 62,708,900 won reverted to the portion reverted to year 202 (hereinafter “instant disposition to impose capital gains tax of 2002, 907,2001).

(b) Disposition on imposition of capital gains tax of 204 320,123,460 won and resident tax of 32,012,340 won;

(1) On October 26, 2004, the Plaintiff acquired and owned a Jdong shopping mall under the first exchange contract as above, and entered into an exchange contract between Jdong shopping mall and the non-party DooD on October 26, 2004, under which 50,000,000 won should be additionally paid as 50,000 won (hereinafter “the second exchange contract”).

(2) In accordance with the second exchange contract, on November 1, 2004, the Plaintiff completed the registration of transfer of the right to Jdong shopping mall and transferred it to the non-party Doz. The non-party Doz transferred the registration of transfer of the right to the plaintiff on November 1, 2004, after concluding the exchange contract, to the plaintiff on November 1, 2004, in addition to paying the difference of exchange 50 million won to the plaintiff after concluding the exchange contract.

(3) On January 31, 2005, the Plaintiff scheduled and paid the transfer income tax of KRW 468,828,828, which was calculated by applying the transfer value of the Jdong shopping district as the transfer value of KRW 2,520,00,000, and the acquisition value of KRW 2,450,000 according to the actual transaction amount as the transfer income tax reverted to year 2004.

(4) After that, the Defendant recognized the actual transfer value of JJdong shopping district as KRW 2,520,00,000, and recognized the actual acquisition value as KRW 1,787,726,660 in Paragraph (1) (4) above, respectively. On February 5, 2008, the Defendant issued a disposition to correct and notify the Plaintiff of the transfer income tax of KRW 320,123,460 as well as KRW 320,123,460 as well as resident tax of KRW 32,012,340 as it reverts to the portion of 2004 (hereinafter referred to as “instant disposition of imposition of KRW 320,123,460 as of February 5, 2008”).

[Ground of recognition] The items of evidence Nos. 1 and 2, Eul evidence Nos. 1, 2, Eul Nos. 1 and 2, and the purport of the whole pleadings

2. Whether each part of the lawsuit of this case relating to the claim for revocation of resident tax imposition is legitimate

Pursuant to Article 177-4(1), (2), and (5) of the former Local Tax Act (amended by Act No. 7311 of Dec. 31, 2004), the resident tax to be imposed is a local tax to be paid to the head of a Si/Gun (the head of a Si/Gun in the case of the Special Metropolitan City/Metropolitan City; hereinafter the same shall apply) having jurisdiction over the place of payment of income tax, and where the head of a tax office collects income tax by the method of imposition and notice of correction or decision under the Framework Act on National Taxes or the Income Tax Act, it shall be deemed that the head of a Si/Gun has imposed and notified the resident tax to be imposed at the same time on the resident tax to be imposed and notified. Thus, the defendant seeking the revocation of the disposition imposing the resident tax of this case shall be the head of the basic local government having jurisdiction over the place of payment of the plaintiff's income tax (see Supreme Court Decision 2004Du1459, Feb. 2

Therefore, each part of the lawsuit of this case seeking revocation of the disposition imposing resident tax is unlawful as it is against a non-qualified person.

3. Whether the dispositions Nos. 1 and 2 of this case are legitimate

A. The plaintiff's assertion

As in the case of the first and second exchange contract of this case, if a transaction is simple exchange, there is no monetary transaction, and in such a case, the application of the method of the estimation survey premised on the existence of the actual transaction value should be excluded and the transfer value should be calculated according to the standard market price, which is the principle of calculating the transfer value under Article 96(1) of the former Income Tax Act. However, the Defendant’s dispositions 1 and 2 of this case, which calculated the actual transfer value or acquisition value of the Jdong commercial building, AAri Forest and Fri Housing by applying the method of estimation survey, are all unlawful.

(b) Fact of recognition;

(1) 소외 정MM을 대리한 소외 황QQ은 2001. 12. 21. 소외 유PP을 대리한 소외 이NN와 사이에 융자금 8,000만 원이 있는 정ks 소유의 경기 RR군 KK면 OO리 21-5전 1990㎡, 19-2 전 261㎡, 19-3 1236㎡, 20-1 '전 1465㎡토지 합계 4952㎡(2003. 1. 1. 기준 공시지가는 합계 8,572만 원 이었다)와 임대차보증금 반환채무 3억 4,000만 원, 근저당 채무 11억 6,000만 원이 있는 유PP 소유의 JJ동 상가를 교환하되 교환차액으로 2억 원을 추가로 지급받기로 하는 교환계약을 체결하였다. 그 후, 소외 정ks은 위 교환계약에 따라 소외 유PP에게 교환차액 2억 원을 지급한 이외에 2002. 5. 24. 위 OO리 21-5 등 4필지에 관한 소유권이전등기를 마쳐주었다.

(2) 소외 조GG은 2002. 3.초경 소외 황QQ을 통하여 소외 정MM으로부터 JJ동 상가를 미등기 상태로 양수하고, 이PP으로부터 AA리 임야, FF리 임야(2002. 8. 10. FF리 325-18 임야 1866㎡, 325-19 임야 753㎡, 325-20 임야 607㎡, 325-21 임야 423㎡로 분할등기 됨)를 미등기 상태로 양수한 후 2002. 5. 7. 원고와 사이에 시가 감정을 거치지 않은 채 위 JJ동 상가, AA리 임야, FF리 임야를 18억 원으로 평가하고 원고 소유의 LL동 부동산을 20억 5,000만 원으로 평가하여 교환하되 교환차액으로 2억 5,000만 원을 추가로 지급하는 제l차 교환계약을 체결하였다.

(3) On August 19, 2002, the Plaintiff completed the registration of ownership transfer with respect to LLdong real estate on August 19, 2002 under the first exchange contract. However, in addition to paying the Plaintiff the exchange difference of KRW 250,000,000 to the Plaintiff, Nonparty Chodong Building completed the registration of ownership transfer with respect to Jdong commercial building on September 13, 2002, and did not complete the construction of the site for electric source housing within the date agreed upon at the time of the first exchange contract and did not complete the construction of the remaining AAG forest and forest within the agreed upon, and did not deliver the FF forest and forest within the original agreed date.

(4) Accordingly, on November 18, 2002, the Plaintiff entered into a provisional disposition of prohibition on disposal of movable property in Incheon District Court Branch 2002Du674, and completed the registration of ownership transfer on the 20th of the same month, and on December 10, 2002, the registration was completed, and on December 10, 2002, the Seoul District Court 202Kadan16549, where the registration of ownership transfer was completed in the name of this PP from among AAri fields, 1065 shares 10/17256, the registration of ownership transfer was completed on the 13th of the same month after receiving a provisional disposition of prohibition on disposal of 7603/1725 shares, and the registration of ownership transfer was completed on the 204th of the same month to the Plaintiff on April 9, 2003, which completed the registration of ownership transfer on the 204th of the same residential land in the name of the 204th of the Gyeonggi Housing (the 2754th of the same forest land.

(5) On March 3, 2004, the Plaintiff trusted the above performance memorandum, applied for the cancellation of the execution of the provisional disposition order prohibiting disposal of the LLdong real estate. Accordingly, even though the non-party YG completed the registration of ownership transfer in the future on the non-party 4th of the same month with respect to the non-party Ydong movable property, the Plaintiff failed to implement an agreement to create the site for electric source housing in AAAri Forest under the above performance angle. On August 17, 2004, the Plaintiff demanded the non-party YG to re-purchase it with the amount equivalent to KRW 400,000,000 which is the acquisition value at the time of the purchase of the AAri Forest and Forest land, or to substitute it at the price corresponding thereto.

(6) Under the first exchange contract, the Plaintiff acquired and owned Jdong commercial buildings in accordance with the first exchange contract and owned them on October 2004

26.Without going through the market value appraisal between JJJD, it assessed the amount of KRW 2.50 million for JJJJ shopping districts, KRW 3.08 billion for the Daejeon Mad's loan obligations of the JJJ branch, KRW 1.160 million for the loans of the Korean bank in the JJJJ branch, KRW 330 million for the lease deposit, and KRW 400 million for the lease deposit of the Daejeon Mad's Daejeon Mad's loan obligations of KRW 1.7 billion for the loans of the JJJ branch, and KRW 1.7 billion for the lease deposit, and KRW 1.3 billion for the actual prices of the JJdong and Daejeon Mad's Mad's Mad's Mad's Mad's Mad's Mad's Mad's Mad's Mad's Mad's Mad's Mad's Mad' 2.

(7) In accordance with the second exchange contract, on November 1, 2004, the Plaintiff completed the registration of transfer of the right to Jdong shopping mall to Nonparty DoD on November 1, 2004, and Nonparty DoD completed the registration of transfer of the right in the name of the Plaintiff on November 1, 2004, in addition to the payment of exchange difference of KRW 50,000,000 to the Plaintiff.

(8) On November 8, 2007, the Plaintiff transferred the AAA forest to Nonparty KimCC and LeeB at KRW 390 million.

[Ground of recognition] The descriptions of Gap evidence 3 to 13 (including paper numbers), Eul evidence 3 to 15 (Ga number 2) and the purport of the whole pleadings

C. Determination

(1) Whether the disposition No. 1 of this case is legitimate

(A) The transfer value of assets pursuant to Article 94 (1) 1 of the former Income Tax Act (amended by Act No. 7120 of Jan. 29, 2004; hereinafter referred to as the "former Income Tax Act") including lives, land, buildings, etc. shall be based on the standard market value at the time of transfer of the relevant assets: Provided, That where real estate is transferred within one year after its acquisition, the transfer value shall be calculated on the basis of the actual transaction value (Article 96 (1) 4 and 6 of the former Income Tax Act) in cases where the transferor declares the real transaction value at the tax office having jurisdiction over the place of tax payment by the deadline for filing a final return along with documentary evidence at the time of transfer

In addition, even if the transferor is required to report the actual transaction amount, if there is no evidentiary document such as a taxpayer's account book or it is impossible to recognize or confirm the actual transaction amount because it is obvious that it is false, the transfer value or acquisition value shall not be the actual transaction amount reported by the transferor, and it shall be based on the method of the estimation investigation in order of application of the method of estimation investigation where it is not verified (Article 114(5) of the Income Tax Act and Article 176-2(1) and (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705, Feb. 19, 2005; hereinafter referred to as "former Enforcement Decree of the Income Tax Act").

Furthermore, the actual transaction value of the pertinent asset, which serves as the basis for calculating the capital gains tax, refers to the value objectively recognized by the sales contract or other documentary evidence, as the transferor transfers the asset at the time of the transaction, or the price received as the price for the transfer of the asset or the price paid as the price for the transfer of the asset by the transferee or the transferee, and the price paid as the price for the transfer of the asset. Thus, if the transaction is an exchange of the asset, it is a value exchange based on the monetary value of the object, which is in particular the market value of the object of exchange, accompanied by the procedure for settlement of the difference in the appraised value. However, in the case of a simple exchange of the object of exchange, the actual transaction value can be verified. However, if there is an agreement between the parties to the transaction that mutually exchanges the object of exchange at the market price, but it is impossible to verify the actual transaction value due to the lack of a specific appraisal

Therefore, in case where the exchange party arbitrarily evaluates the value of the object of exchange without going through the market price appraisal and settlement procedure, and enters the exchange difference in the exchange contract, or in case of simple exchange without any difference in the exchange difference, the actual transaction price cannot be recognized or confirmed. Therefore, the method of estimation investigation shall be applied to the transaction example, appraisal price or sale price, appraisal price, and conversion price, but if such value is not confirmed, it shall be based on the standard market price.

(B) However, according to the above facts, the Plaintiff entered into a first exchange contract with Jdong commercial building, AAriri, Fririland and Fririland and exchange 250 million won without undergoing market price appraisal and settlement procedures, etc. on May 7, 2002, which is real estate within one year after acquisition with the non-party YG. Thus, barring special circumstances, the Plaintiff calculated the transfer value based on the actual transaction price in relation to the transfer of the LLdong real estate and paid the transfer income tax, but on the other hand, if the exchange difference is entered in the exchange contract by assessing the value of the real estate subject to exchange without using the market price appraisal procedure for the difference in the appraisal value, it is impossible to recognize or confirm the actual transfer value, and ultimately, the Plaintiff’s actual transfer value should be calculated by applying the estimation method according to the order of execution of the transaction example, which is the real estate transfer price, and there is no other evidence to confirm the transfer value of the real estate in this case, the transfer value of the real estate at issue.

(C) Regarding this issue, the Defendant asserts that the actual transfer value refers to the transaction value of the assets acquired through the exchange rather than the transferred assets, and thus, the object of the estimation investigation is subject to the transfer assets rather than the transferred assets. However, the method of estimation investigation is introduced into the Enforcement Decree of the Income Tax Act by a method of ascertaining the actual transaction value of the assets acquired or acquired in the event that there is a real transaction value, i.e., the actual transaction value, but it is difficult to recognize or confirm the actual transaction value because there is no evidentiary document, such as a taxpayer's account book, etc. necessary for the taxation, although there is a reason under Article 176-2 (1) of the former Enforcement Decree of the Income Tax Act, or where it is difficult to recognize or confirm the actual transaction value due to the apparent fact that there is no real transaction value, and as in the case of this case, it is difficult to conclude that the difference is made to receive only the assets acquired in the exchange contract without accompanying the market price appraisal and settlement procedure, etc.

(D) Furthermore, as alleged by the Defendant in the first exchange contract, the actual transfer value refers to the transaction value of the assets acquired by the exchange rather than the transferred assets. Thus, even if it is assumed that the object of the estimation investigation should be the assets acquired by the exchange rather than the transferred assets, the estimation investigation conducted by the Defendant as to the Jdong commercial building, AAri forest, Fri forest, etc. acquired by the Plaintiff as a result of the performance of the first exchange contract is difficult for the following reasons.

1) First of all, the Defendant acquired the above JM 2 from Nonparty 2, around March 2002, around 7, 2002, the above JM 2, and on December 21, 2001, the above JM 21-5, 19-2, 19-3, and 20-1, the aggregate of the rent deposit return obligations of KRW 4952, 340,000,000, and KRW 1.1.6,000,000,000,000,000 KRW 70,000,000,000,000,000 KRW 67,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00.

However, according to Article 176-2 (3) 1 of the former Enforcement Decree of the Income Tax Act, where there is a transaction example of assets identical or similar to the relevant assets within three months before or after the transfer date or the acquisition date respectively, the transaction example example value in applying the estimated transaction example value refers to the value of assets in applying the estimated transaction example value. Here, considering the legislative intent of the said estimated transaction example clause and the propriety of the calculation of the actual transaction value, it is reasonable to view that the transferor transfers the assets at the time of the transaction, the value received in return or the transferee received in return, and the value paid in return is the specific value objectively recognized by the sale contract and other evidence. However, in the first exchange contract, the defendant's actual transaction example value in the Jdong commercial building under the Jdong's exchange contract is difficult to view the transaction example value as the transaction example value is not the transaction value in the above typical meaning, but the actual transaction example value in applying the exchange contract is difficult to be considered as the sale price difference between the plaintiff 2 and the transferee and the transferee.

2) Furthermore, on February 20, 2004, the Defendant notarized a written statement of performance to the Plaintiff on February 20, 2004, that, upon obtaining permission for changing the form and quality of the AAG forest land from the time of the first exchange contract, the Defendant would compensate the Plaintiff for the purchase price of KRW 400,000 per square meter at the time of the exchange contract in the event that the construction of the site for electric source housing is completed and is not performed, and thereafter, on August 17, 2004, the Plaintiff was unable to perform the agreement under the above performance note, and the Plaintiff demanded Nonparty ChoG to purchase it again or substitutely to purchase it based on KRW 40,000 per square meter at the time of purchase of the AAG forest land from the time of purchase of the 100,000,000 won per square meter at the price corresponding thereto, the actual transfer price of the AAG forest land under the first exchange contract is KRW 230,300,000 per square meter.

The premise stated by the Defendant is acknowledged as above. On the other hand, Nonparty 2 entered into a sales contract with Nonparty 1 on February 10, 2004 to sell it to Nonparty 2, but the Plaintiff could not transfer the above real estate before cancelling provisional disposition on November 20, 2002, and it appears that the Plaintiff was bound to complete the above disposal order on February 20, 2004. Furthermore, at the time of the execution note 204, it appears that Nonparty 1 promised to purchase the above real estate as KRW 30G on February 20, 200, and it appears that the agreement was made for the sale of the forest and fields by Nonparty 20G on February 20, 200, and that at the time of the execution note 20G, it would have been unlawful for the Plaintiff to complete the sale of the forest and fields at KRW 30G 10,000,000,000 for the sale of the forest and fields at KRW 30G 40,000.

(2) Whether the disposition No. 2 of this case is legitimate

As seen in paragraph (1) (d) (1) above, in recognizing the actual transfer value of the LLdong real estate transferred by the plaintiff at the time of the first exchange contract, the application of the transaction example is unlawful in the estimation investigation method as to the Jdong commercial building, which is part of the real estate exchanged in compensation. Thus, it is also unlawful to recognize the actual transaction value of the Jdong commercial building recognized by applying the illegal transaction example example as above as the actual acquisition value in the second exchange contract that the plaintiff transferred the Jdong commercial building to the non-party D. Therefore, the plaintiff's assertion pointing this out is with merit.

(3) Sub-decisions

Therefore, the defendant's dispositions of this case Nos. 1 and 2 on different premise are all illegal.

4. Conclusion

Therefore, the part of the claim for revocation of the resident tax disposition among the lawsuit of this case is unlawful, and it is dismissed, and the part of the claim for revocation of the disposition of transfer income tax is justified, and it is so decided as per Disposition.