△△△-2016-Gu Partnership-556 ( October 24, 2018)

Disposition that is estimated by conversion acquisition value is illegal;

Since the actual transaction price and time of acquisition are confirmed by the acquisition contract submitted by the Plaintiff, the disposition of this case applying the transfer price and conversion acquisition price is unlawful.

Article 94 of the Transfer Income Tax Act (Scope of Transfer Income)

2018-Nu-907 Revocation of Disposition, etc. of Imposition of Capital Gains Tax

OO

O Head of tax office

2018.05.24

December 19, 2018

oly 15, 2019

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of capital gains tax of KRW 467,661,590 (including additional taxes) accrued to the Plaintiff on April 6, 2015 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

The reasons for this part are the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, they are cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) As of July 1, 2004, the individual land price determination, which forms the basis for calculating the tax base, was determined based on the officially assessed land price determined illegally as a commercial or commercial area, although it should not be determined as the previous land use status, since there was no reporting and commencement of construction for the land 2**-4 among the land at issue of this case as of July 1, 2004.

2) Even if the determination of individual land price is not illegal, the plaintiff liquidated the purchase price for the land at issue of this case on June 16, 2003 and acquired the land at issue of this case and transferred it to AA on December 28, 2004. Thus, the plaintiff owned the land at issue of this case for at least one year pursuant to Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005; hereinafter the same shall apply) and thus, the transfer income tax should be imposed on the "standard market price" pursuant to the main text of Articles 114 (4) and 96 (1) of the former Income Tax Act. However, the defendant issued a revised disposition by applying the "actual transaction price for the land at issue 2 of this case" as to the land at issue of this case, and thus, the disposition of this case is unlawful (hereinafter referred to as "claim 2 of this case").

3) Even if the Defendant’s correction is lawful based on the actual transaction price, it is unlawful for the Defendant to take the instant disposition by deeming the sales price of KRW 940 million under the instant contract lacking credibility as the transfer price based on the actual transaction price.

4) In addition, it is not based on the actual transaction value, which is the actual transaction value that the Defendant confirmed "acquisition value" as necessary expenses for capital gains, but based on the estimation taxation that determines the acquisition value by converting the acquisition value from the transfer value based on the standard market price at the time of acquisition from the transfer value, is also illegal. The Defendant should have conducted the on-site investigation by submitting new data from the Plaintiff before determining the acquisition value through the said estimation investigation method, but the disposition of this case which failed to do so is unlawful.

5) Even if the need for such an estimated investigation is recognized, a trader may also conduct an estimated investigation.

Although it should have taken into account the equivalent value and the appraisal value, the disposition of this case which did not consider it is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to the first argument

In light of the following circumstances that can be seen by comprehensively taking account of the descriptions No. 8 and 9 of evidence, the fact-finding results of the first instance court’s fact-finding, and the overall purport of the pleadings, it is difficult to deem the Defendant’s calculation of the officially assessed individual land price as to the land No. 2**-4 out of the issues 2 of this case’s issues based on the transfer value and acquisition value, and there is no other evidence to acknowledge it otherwise.

A) On July 1, 2004, the officially assessed land price as of July 1, 2004, among the issues 2 of this case, applied the land use status as a commercial site and applied the comparison standard site as a gas station standard land on the ground that the purpose of the land development act was to create a gas station site, appears to have been determined by applying the comparison standard site as a gas station, and no illegality exists otherwise in the determination of such officially assessed land price

B) Even if the instant land 2 was relatively high compared to neighboring land as alleged by the Plaintiff, each land has different characteristics and appraisal factors, and it is possible to increase or decrease the officially assessed individual land price according to the land price calculation purpose. Thus, such circumstance alone cannot be deemed unlawful.

C) After the publication of the officially assessed individual land price, the Plaintiff filed a civil petition with the △△-Gun Office, the Auditor General Office of △△-Do Office, and the Anti-Corruption and Civil Rights Commission. However, all of the above agencies determined that there was no illegality in

2) Determination as to the second argument

In light of the following facts and circumstances, Gap 4, 5, 11, 12, 28, 32, 33, 35, and 41 evidence, it is reasonable to view that the plaintiff determined the purchase price of the entire land including BB, CCC, and 2 land, and accordingly, the above purchase price was fully liquidated on June 16, 2003. Thus, the plaintiff's disposal of the above 2 land should be deemed to be the time of acquisition of the 6th anniversary of the above 4th anniversary of the date of transfer registration of the above 2nd land. Since the defendant's disposal of the above 6th anniversary of the above 10th anniversary of the fact that the transfer price of the above land cannot be seen as the actual transaction price of the above 16th anniversary of the date of transfer registration of the above land, it cannot be seen that the transfer price of the above 4th anniversary of the above 16th anniversary of the date of transfer registration of the above 2nd issue at the time of acquisition of the above 16th.

A) BBB, the owner of the instant land 1, and CCC, the owner of the instant land, agreed to sell the instant land at KRW 370 million to the Plaintiff on March 25, 2003, the real estate sales contract was drafted as of March 25, 2003. Of the above sales price, KRW 50 million was determined as of April 10, 2003; KRW 250 million in the remainder of intermediate payment (which is written in the column, but is written in the column,) and KRW 250 million in the remainder of intermediate payment (which is written in the column, and in the form of intermediate payment), respectively, as of May 25, 2003.

B) ① The contract deposit amount of KRW 50 million was paid and received at the time of the contract, and the seal of the BB and CCC, the seller, has been affixed thereto, and the Plaintiff’s deposit account (CF*****-***************) was replaced on March 25, 2003, which was the date of the contract.

② On April 10, 2003, indicated as the payment date of intermediate payment of KRW 70 million in the above contract, KRW 55 million was withdrawn as a check from the Plaintiff’s deposit account (SOC********-************)). The Plaintiff’s deposit account was replaced by KRW 15 million in the above agricultural bank account of the Plaintiff.

③ On May 26, 2003, the day after May 25, 2003, indicated as the payment date of intermediate payment of KRW 250 million in the above contract, the Plaintiff deposited KRW 180 million in cash from the deposit account of the above community credit cooperatives, and the above BB received KRW 180 million from the Plaintiff as the intermediate payment of OOri land on the same day.

④ The Plaintiff’s wife-type, and the Plaintiff’s land owner other than the instant DoD’s account (Seoul Bank*****-******************) on June 16, 2003 to the EE account, which was withdrawn as KRW 70 million, and the BB received KRW 70 million from the Plaintiff as the balance of the land in △△-gun, △△-gun, △△△△△, and the Plaintiff’s NA account transferred the total amount of KRW 70 million from July 14, 2003 to September 1, 2003 to the KE bank account.

C) A 20-2 2,254 square meters prior to subdivision 2* 20-2,254 square meters were newly built on August 14, 2003 (based on convenience registration; hereinafter the same shall apply) divided into 20-2* 98 square meters prior to subdivision 2* 1,256 square meters, and the aforementioned 2**** 22*-4,256 square meters prior to subdivision 20-4, and the instant 20-4 square meters divided into the instant land under the name of 20-4 and 204 square meters, and the instant 9-2,000 square meters divided into the instant land under the name of 20-4,0000 square meters, 200 square meters prior to subdivision 2,000,0000,0000,0000 20-4,000 square meters prior to subdivision 9-2,000,0000

라) 위 계약서에 중개업자로 기재된 "○○부동산 FFF"은 2000. 12. 23.부터 2015. 1. 2.까지 △△에서 공인중개업을 등록한 자이고, 중개업자란에 기재된 또 다른 "□□QQ측량 JJJ"는 원고로부터 이 사건 전체 토지의 측량・설계 등을 의뢰받은 자이다.

E) On January 29, 2004, the Plaintiff entered into a sales contract with CCC and the instant 2 land, stating that the Plaintiff received KRW 19 million at the time of entering into a contract, and entered the grounds for registration of the Plaintiff’s transfer of ownership on the said land into a sale contract on January 29, 2004. However, in light of the existence of another contract as seen earlier and the financial transaction details corresponding thereto, and the contents of the said sales contract, which requires the payment of the purchase price in lump sum without any intermediate payment or any balance, it is difficult to view that the sales contract with the instant 2 land was concluded, or that the date of settlement is at any time, based on the said sales contract.

3. Conclusion

If so, the plaintiff's claim of this case should be accepted on the ground of its reasoning. The judgment of the court of first instance is unfair on the ground of its conclusion, and the disposition of this case is revoked.