Whether a disposition imposing capital gains tax based on actual transaction price is legitimate

Although it is true that the approval seal contract of this case was falsely prepared, it is difficult to view it as an speculative transaction because it is difficult to view it as a speculative transaction, and the disposition of this case calculated on the basis of the actual transaction price.

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

1. The Defendant’s imposition of KRW 598,406,80, respectively, of capital gains tax for the year 1994 against the Plaintiffs on December 16, 1995 shall be revoked. 2. The litigation cost shall be borne by the Defendant.

1. Details of the instant disposition;

The following facts do not conflict between the parties, or may be acknowledged by adding up the whole purport of the pleadings to each description of Gap evidence Nos. 1, 3, 4, 5, and 6, and each description of Gap evidence Nos. 2, 2, 7, 9, Eul evidence Nos. 4, 5, 6, 8-1, and 2, and there is no counter-proof.

A. On September 24, 1990, the Plaintiffs entered into a contract with the non-party Korea National Housing Corporation, which was implementing a land readjustment project for the area of ○○ Dong on September 24, 1990, to jointly purchase the commercial land of 12,343 square meters in the said project area at 7,130 million won.

B. After that, on August 23, 1993, the land above was determined to be substituted with 303 0,152 m2,152 m2.1 m2,000 m2,000 m2,000,000 as the price was changed to 6.99,3144,680 m2,000,000 due to a decrease in the area. The plaintiffs paid in full the price by October 30, 1992, and completed the registration of ownership transfer of the above land as co-ownership on December 14, 1993. On January 24, 1994, the above land was divided into 303 m2,003 m2,000 m2,003 303 m2,267.9 m2.

C. On April 20, 1994, the Plaintiffs entered into a sales contract with Nonparty ○○ Housing Co., Ltd. to sell the above 303-1 land price to KRW 4.315 billion. On May 3 of the same year, the Plaintiffs completed the registration of ownership transfer on the above ○ Housing Co., Ltd. on May 3 of the same year. However, each of the purchase price on two copies of the approval seal agreement prepared in the process (by each of the Plaintiffs between the above ○ Housing Co., Ltd.) was written differently from the fact (the aggregate amount of KRW 2.5 billion, which differs from the actual price of KRW 4.315 billion).

D. The Plaintiffs subsequently voluntarily paid each tax amount of KRW 5,264,64,645 by filing a preliminary return on the gains on the transfer of assets following the transfer of the said land according to the standard market price.

E. As to this, the Defendant, on the ground that since a false seal of approval was prepared in the process of transferring the above land, the Defendant imposed a false seal of approval, based on the proviso of Article 23(4)1 of the former Income Tax Act (amended by Act No. 4803, Dec. 22, 1994; hereinafter the same) and the proviso of Article 45(1)1(a) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467, Dec. 31, 1994; hereinafter the same) and Article 170(4)2(e) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 14467, Dec. 2, 1994; hereinafter the same) the transfer value by each of the Plaintiffs should be calculated based on the actual transaction price, imposed capital gains tax of KRW 2.1575 million,1569,438,000 for each of the Plaintiffs.

2. Whether the instant disposition is lawful

A. The parties' assertion

As to the defendant's assertion that the disposition of this case was lawful on the grounds of the above disposition grounds and applicable provisions of law, the plaintiffs asserted that the defendant's imposition of transfer income tax of this case was unlawful in calculating transfer margin based on the standard market price pursuant to the proviso of Article 170 (4) 2 of the former Enforcement Decree of the Income Tax Act, since there was no speculative speculation in the transfer process of the land of this case.

B. Relevant statutes and the interpretation thereof

Article 23 (4) 1 of the former Income Tax Act provides that the transfer value of land shall be based on the standard market price at the time of transfer of the relevant asset, but in such cases as prescribed by the Presidential Decree, it shall be based on the actual transaction price, and Article 45 (1) 1 (a) of the same Act provides that the acquisition value, which is necessary expenses to be deducted from the transfer value in calculating gains on transfer of land, shall be based on the standard market price at the time of acquisition of the relevant asset, but

In addition, Article 170 (4) 2(e) of the former Enforcement Decree of the Income Tax Act provides that one of the cases prescribed by the Presidential Decree under the proviso of Article 23 (4) 1 of the former Income Tax Act and the proviso of Article 45 (1) 1(a) of the former Enforcement Decree of the Income Tax Act shall be the case where the acquisition or transfer of real estate exceeding a certain scale prescribed by the Commissioner of the National Tax Service violates the relevant Acts and subordinate statutes by unlawful means, such as the use of another person's name, the preparation of a false contract, and the false transfer of resident registration, and the proviso of Article 170 (4) 2 of the former Enforcement Decree of the Income Tax Act shall be excluded from the actual transaction price after consultation under paragraph (9). Article 170(9) of the former Enforcement Decree of the Income Tax Act provides that the Commissioner of the National Tax Service may, if deemed necessary for the head of the competent district tax office or the director of the regional tax office having jurisdiction over the domicile or the director of the regional tax office, consult a person with respect and experience in appraisal

On the other hand, the purport of the provision of the main sentence and proviso of Article 170 (4) 2 of the former Enforcement Decree of the Income Tax Act seems to be to impose capital gains tax on the speculative act by allowing the calculation of gains from transfer based on the actual transaction price.

Therefore, it would be presumed that the transaction falls under the category listed in the above provision, but considering the specific circumstances such as the acquisition circumstances, actual conditions, sale circumstances, sale circumstances, holding period, etc. in the transaction of the pertinent real estate,CC where the transaction concerned is deemed to have no speculation as a normal economic act should exclude the transaction price from the application of the actual transaction price and calculate the transfer margin based on the standard market price, which return to the principle of taxation of the standard market price (see Supreme Court Decision 95Nu518 delivered on May 31, 196).

(c) Fact finding;

Each evidence employed above, Gap's evidence, Gap's evidence Nos. 8, 10, 13, 21, 22, 30, 36, 37, 38, 45, Gap's evidence No. 11-1 through 16, Gap's evidence No. 12, 14, 15, 16, 23, 24, and 46, Gap's evidence No. 17-1 through 20, Gap's evidence No. 18-1 through 9, Gap's evidence No. 19-1 through 6, Gap's evidence No. 25-1 through 4, Gap's evidence No. 40, 41, 42, and 43-1, 2, Eul's evidence No. 2, Eul's evidence No. 11-2, Eul's evidence No. 10, and Eul's testimony cannot be acknowledged in consideration of each of the following facts.

(1) The plaintiff Lee Dong-dong owned four lots of land, including 1,464 3,531 m20 square meters of ○○○○○○-dong 1, 000, for twenty years, and cultivated ornamental trees on the ground. On July 1990, the entire land was expropriated by the State, and received approximately two billion won compensation. Since the above plaintiff, who was in office as an assistant principal of a commercial high school, was about three years of his retirement age, the plaintiffs were able to use the above compensation in the future education project, and the land where the above compensation can be set up in the vicinity of ○○○○-dong 1,464 m2.

(2) Around that time, the Plaintiffs sought to purchase the land of approximately KRW 4,00 as a school building site by hearing a small awareness of selling the land of approximately KRW 4,00 in the non-party Korea National Housing Corporation, which was in the process of implementing a land readjustment project for ○○○ Dong area, but thereafter intended to waive the purchase with the knowledge that the land was limited to the use as a used cars market site. However, if the auction system is introduced for the improvement of the used cars distribution structure in Korea even in the long run by the plaintiffs, the plaintiffs, who worked for the automobile company, were to purchase the above land and encourage to purchase the above land and conduct the auction for used cars.

(3) The plaintiffs entered into a contract with the above Corporation on September 24, 1990 to jointly purchase 12,343 square meters of commercial land in the above project area (hereinafter in this case's land) at 7.1.30 million won, and the down payment of 1.42 billion won was paid on the date of the contract, and the intermediate payment of 2.13 billion won was paid until December 23 of the same year, and the remainder of 3.55 billion won was paid until March 23, 1991. In the event of arrears, the above Korea National Housing Corporation cancelled the contract, or allowed the bank to file a claim for arrears at the interest rate of a general bank for overdue payments (Article 1(1)1 and (2) of the contract).

(4) In addition, when the above contract is concluded, the designated purpose of the land in this case is limited to the used car sales market, and if the plaintiffs, the purchaser, who used the land for other purpose, have the contract rescinded (Article 9(1)3 of the contract), and if the facilities appropriate for the designated purpose are not constructed and used within three years from the contract date, they can be redeemed (Article 2 of the contract) and the plaintiffs agreed not to divide the land (Article 4 of the contract).

(5) At the time of the above sales contract, the plaintiffs estimated that the total amount of about 10 billion won, including the purchase price of the land in this case and the construction fund for facilities on the land above the above ground, should be financed. In addition to the above compensation for the expropriation of the land in ○○○-dong, 189, 250 million won, which was received by selling 10 m279 m279.1 m279 m2, which is owned by the plaintiff Lee Dong-ri, and 415 million won, which was received by selling 1/2 m2 m2 m2 in the order of Kim○-dong, 219 m2, 324.8 m2, 415 million won, which was received by selling m2 m2 to 300,000 won in total, the remaining funds were sold to the plaintiff Kim○-dong, 1000 m2,300 m2,538 m2,784 m2.

(6) The Plaintiffs requested the Real Estate Brokerage Office to sell real estate plans to raise funds for the payment of intermediate payments from the date following the conclusion of the instant purchase and sale contract, while the Plaintiffs made a sale advertisement over 20 times from October 23, 1990 to May 7, 192 in the major daily newspapers, but the said real estate market did not sell the said real estate as soon as the said real estate market was rapidly chilled due to a strong government policy for preventing real estate speculation, which was launched around October 190 and the government’s strong real estate speculation.

(7) As the Plaintiffs were unable to comply with the date of the payment of the intermediate payment of the instant land, the said construction works notified the Plaintiffs that the contract will be rescinded if the payment of the price is delayed nine times from February 27, 191 to July 31, 192.

(8) The plaintiffs borrowed 2 billion won from February 1991 to April 1 of the same year and paid part of part of part of part of part of part of part of part of part of the land of this case, but the real estate sale plan was not continuously sold. On May 191, 1991, the non-party ○○, who was the representative director of the non-party 1 corporation, requested the above company to sell part of the land of this case as its used cars sales business. On May 20, 1991, the non-party ○, who was the representative director of the non-party 1 corporation, requested the above company to sell part of the land of this case. On the 20th of the same month, the non-party ○, who was the representative director of the non-party 1 corporation, sold part of part of part of part of part of part of part of the land of this case,

(9) The Plaintiffs paid in full the price of the instant land by October 30, 1992, and completed the registration of ownership transfer on December 14, 1993 with respect to the said land as co-ownership. On January 24, 1994, the Plaintiffs divided the said land into 00 ○○-dong 303 large 8,267.9 square meters and retail market land to be used as a site for auction market, and 3,884.2 square meters (per 1174 square meters) of the said ○○-dong 303 square meters (per 1174 square meters) to be used as a site for auction market.

(10) After that, the above transfer of the management right of the above company's 933 square meters among the land in this case and its management right to the non-party ○○○. The above transfer of the company's name to the ○○ Housing Co., Ltd., and on March 25, 1994, the above transfer of the company's name to the ○○○ Housing Co., Ltd., and requested the plaintiffs to sell the whole 1174 square meters of the above 303-1 land to the ○○○. The plaintiffs, who had been suffering from financing difficulties because the real estate was not sold until then, was not sold. On April 20, 1994, the above ○○ Housing Co., Ltd. and the above ○○ Housing Co., Ltd. were to sell the above 303-1,315 billion won of the price to the above ○ Housing Co., Ltd. on May 3, 1995.

(11) However, the above head of ○○○ is a practice of lowering the purchase price in an application for permission of land transaction or a certificate of approval, and the two copies of each purchase price were written differently from the fact that each purchase price was 1.29 billion won and applied for land transaction permission by each individual, and the Plaintiffs, who were at risk of resolving financial difficulties, were also admitted.

(12) From the date following the conclusion of the instant land purchase contract, the Plaintiffs were preparing for the establishment of an auction house, such as reviewing the feasibility of the project, the selection of employees and overseas training, and the preparation of guidelines for the operation of the auction house. From July 193, the Plaintiffs began to set up a building on the ground of the above ○○○dong 303 land, and completed the construction on May 1994, and currently, run the auction of used cars through the future corporation established by them.

D. Determination

According to the above facts, it is true that the false contract was made by allowing the plaintiffs to enter the amount lower than the actual transaction price in the approval agreement of this case. However, in full view of the details of the purchase and sale of the land of this case, the circumstances of the sale, the actual use of the land of this case, and the special characteristics of the land of this case, etc., it is reasonable to view that the transaction of this case is not an speculative transaction. Therefore, the disposition of this case, which calculated the transfer margin as the actual transaction price for the transaction without speculative speculation, should be deemed unlawful (only if the matters such as the standard market price, capital expenses, transfer expenses, etc. of the land of this case should be properly known, a reasonable tax amount based on the standard market price for the plaintiffs can be calculated, and since the above

3. Conclusion

Therefore, the defendant's disposition of this case is unlawful, so the plaintiff's claim of this case seeking revocation is justified, and it is so decided as per Disposition.

April 7, 1998