Early High Court Decision 2012J 1411 (Law No. 1129.06)

Pro rata distribution is legitimate for those that are deemed to have been transferred en bloc without dividing the value of land 1 and 2

The payment of the amount agreed upon to the person who made a provisional disposition on the ground of the acquisition by prescription of possession of the land 1, 2 and 3 is to cancel the provisional disposition set forth in the whole house and the land, and since the provisional disposition was not set up at the time of the transfer of the land 1, 2 after the cancellation of the provisional disposition, it is legitimate to dispose of the amount divided

2013Gudan1083 Revocation of Disposition of Imposing capital gains tax

AAA

The director of the tax office

April 19, 2013

May 10, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 000,000 against the Plaintiff on January 2, 2012 is revoked.

1. Disposition and details thereof;

A. On April 5, 1970, the Plaintiff acquired 200 00 m2,143 m2, and 143 m2 (hereinafter “2 of this case”) such as 00 m2,000 m2,000 m2,000 O-dong 00 m2 (hereinafter “1 of this case”) by inheritance.

나. 이 사건 제1 토지 위에는 단층주택(44.52㎡， 이하 '이 사건 주택'이라 한다)이 있었고， 1993. 12. 27. 소유권이전등기가 된 임BB 소유이다.

C. On July 7, 2009, the Plaintiff transferred the instant land 1, 2, and the instant land in KRW 000, and thereafter reported the transfer income tax based on the respective acquisition and transfer values (land 1, 000, 000, 000, and 000, and 200) by classifying the said transfer into the land 1, and 2.

D. The Defendant, while deeming that the instant land was transferred en bloc without distinction between the value, was calculated on a pro rata basis in proportion to the standard market price, and the acquisition and transfer value was calculated on a pro rata basis (one land, KRW 000, KRW 000, KRW 200, KRW 000, and KRW 000), and accordingly, imposed capital gains tax of KRW 000 on January 2, 2012.

[Evidence] There is no dispute between the parties or evidence No. 11 No. 11

A. Where the amount of capital gains is calculated based on the actual transaction price, where several real estate, such as land and buildings, are transacted together, each actual transaction price may be calculated by calculating the amount in proportion to the standard market price by transferred asset if it is impossible to distinguish them. [Article 100(2) of the Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009; Article 166(6) of the Enforcement Decree of the Income Tax Act; Article 48-2(4) proviso of the Enforcement Decree of the Value-Added Tax Act [Article 48-2(4)1 of the Enforcement Decree of the Value-Added Tax Act]. The defendant issued the disposition in this case on the ground that the plaintiff sold the first and second land

B. In light of the following circumstances, the Plaintiff asserts that the actual transaction price of the instant land 1 and 2 can be distinguished, and that the instant disposition is unlawful. He asserted that forest B, who is the owner of the instant housing, owned the instant land 1 and 2 on the ground of prescription for acquisition by possession, and that the instant disposition was prohibited from disposal. In order to sell the instant land 1 and 2, the Plaintiff recognized forestB and the instant land 1 and the instant housing as owned by B on May 26, 2009, and agreed to pay KRW 000 in total after evaluating 00 and the housing 1 and the housing 000 won, and the provisional disposition was revoked in accordance with this agreement. In addition, the Plaintiff specified each purchase price of the instant land 1 and 2, and 000 won and each of the instant housing 1 and 2 was sold and prepared.

(c)in addition to the descriptions of Gap, 2, 5, 6, 8, and 3, the whole purport of the pleading may be added, and the following facts may be admitted:

(1) The instant house is the ownership of BB whose ownership registration has been completed in the future of B on December 27, 1993, with the addition of BB, and on December 27, 1993. The B was executed on October 6, 2008 on the instant land 1 and 2, and on the completion of the prescription period for the acquisition of possession, and was subject to a provisional disposition on the seventh day of the same month.

(2) On May 26, 2009, the Plaintiff, who had been seeking to sell the instant land Nos. 1 and 2, agreed to consent to sell the instant housing and 1.2, and the PP agreed to pay KRW 000 to the Plaintiff. On June 1, 2009, the enforcement of the above provisional disposition was revoked.

(3) On July 7, 2009, the Plaintiff: (a) calculated the instant housing at KRW 000; (b) calculated the instant housing at KRW 1,000; and (c) sold the instant housing at KRW 000 in total; and (c) did not distinguish the sales price for the first and second land.

D. As seen above, the Plaintiff’s payment of KRW 00 to NA was intended to cancel provisional dispositions set forth in the first and second lands other than the instant housing, and was not divided into the first and second land values between the Plaintiff and NAs, etc.. In short, it is difficult to deem that the Plaintiff calculated the first and second land values by limiting to the first land between PEs, POs, etc. It is difficult to deem that the Plaintiff calculated the first and second land values by not impeding the above recognition, and there is no evidence to support that the first and second land values were calculated by classifying the first and second land prices.

E. Therefore, the instant disposition is lawful, premised on the premise that the actual transaction values of the land, and the land 1 and 2 cannot be separated.

3. Conclusion

The plaintiff's assertion is difficult to accept, and the claim of this case is dismissed.