Whether land has no officially announced land price;

Where land category is changed due to the change of use of a building, land category under the Cadastral Act shall not be changed due to the change of land form and quality or change of use.

Article 164 (Assessment of Standard Market Price of Land and Building)

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of capital gains tax of KRW 71,956,183, and capital gains tax of KRW 81,011,110 against Plaintiff 1 and maximum 00 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

The following facts are not disputed between the parties, or acknowledged by considering the whole purport of the pleadings in each entry of Gap evidence 1, Gap evidence 2, Gap evidence 3, Gap evidence 4, Eul evidence 1, Eul evidence 2, and Eul evidence 3.

A. On Jun. 28, 2004, the Plaintiffs transferred each ownership share to 00 m2,000 00-0,000 Dong-dong 00,40,42, and 48-4 m2, a total of 957 m2,000 m2,000 m2 (hereinafter referred to as “dis-owned land”), and filed a transfer income tax by calculating the transfer value applying the officially assessed individual land price as of January 1, 2003 to 1860,000 m2.

나. 피고는 위 토지가 당초 주유소 용지로 사용되다가 그 지상에 근린생활시설 용도의 건물이 신축됨으로써 그 용도가 변경되었고, 그에 따라 지적법상 지목이 잡종지에서 대지로 변경되었으므로, 구 소득세법(2005.1.14. 법률 제7335호로 개정되기 전의 것, 이하 '법' 이라 한다) 제99조 제1항 제1호 가목 단서 및 법 시행령(2005.2.19. 대통령령 제18705호로 개정되기 전의 것, 이하 '시행령'이라 한다) 제164조 제1항 제3호 소정의 '개별공시지가가 없는 토지'에 해당한다는 이유로, 2개 감정평가기관에 감정을 의뢰하여 평가한 333만원(/㎡)을 적용하여 양도가액을 계산한 후, 2004년 귀속 양도소득세로 2005.1.3. 원고 최〇〇에게 71,956,183원, 원고 최〇〇에게 81,011,110원을 각 부과(이하 '이 이사건 처분'이라 한다)하였다.

2. Whether a disposition is lawful

A. The plaintiffs' assertion

The instant disposition shall be revoked on the grounds that it is unlawful for the following reasons.

(1) The proviso of Article 99(1)1 (a) of the Act delegates evaluation of only the land for which the publicly announced individual land price is not publicly announced by the method prescribed by the Presidential Decree. Thus, Article 164(1) of the Enforcement Decree of the Act applies to a case where there is no publicly announced individual land price among the land falling under each subparagraph of the same paragraph. Since the above land does not fall under the land for which the publicly announced individual land price is no publicly announced, the disposition of this case based on the premise that the above land falls under the land for which

(2) Even if it is not so, Article 164(1)3 of the Enforcement Decree provides that "land whose land category is changed due to the change of the form and quality of the land or the change of the purpose of use of the land." Thus, the disposition of this case based on the premise that the above land falls under the above provision is unlawful, since the land category is changed due to "the change of the form and quality of the land" or "the change of the purpose of use of the land" under the above provision.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are acknowledged by comprehensively taking account of each of the aforementioned evidence, Gap evidence 1 to 4, Gap evidence 5, Gap evidence 6, and Gap evidence 16.

(1) The above land was originally land category as it was used as one of four lots. Since the maximum 00, the father of the plaintiffs, commenced gas station business on August 23, 1994 with the trade name of "00 gas stations" from the above land, the land category was changed to miscellaneous land on March 14, 1997.

(2) The maximum 00 discontinued gas station business on March 2, 2002, and thereafter, on March 30, 2002, children of 00, including the plaintiffs who became co-owners of the above land, were newly constructed upon obtaining a construction permit for Class 1 neighborhood living facilities of 2 underground and 14th above on the above land, and obtained a construction permit for the above building from the competent authority on June 10, 204.

(3) Co-owners of the above land, including BBB and the plaintiffs, filed an application for land category change of the above land. Accordingly, the head of 00 head of 00 Metropolitan City changed the land category of the above land to the site on the ground that the use of the building was changed on June 16, 2004.

D. Determination

(1) As to the assertion that Article 164(1) of the Enforcement Decree applies to a case where no officially assessed individual land price exists among the lands falling under each subparagraph of the same paragraph

(A) Articles 94(1)1, 96(1), and 99(1)1(a) of the Act and Articles 10(2) and 10-2 of the former Act on the Public Notice of Values and Appraisal of Land, Etc. (amended by Act No. 7335 of Jan. 14, 2005; hereinafter referred to as the “Public Notice of Values and Appraisal of Real Estate Act”) provide that the transfer value of the land shall be the standard market price at the time of transfer at the time of transfer, and the standard market price shall be the amount determined by the Presidential Decree in consideration of the officially assessed individual land price of neighboring similar land. Article 164(1)3 of the Enforcement Decree provides that the value of the land for which no individual publication exists shall be determined by the method as determined by the Presidential Decree in consideration of the officially assessed individual land price of neighboring similar land; in case of the land whose category has been changed due to changes in the form and quality of the land or changes in use of the land, the appraisal value of the land shall be compared to the standard land price.

(B) In light of the above provisions of the relevant laws and regulations, Article 164(1) of the Enforcement Decree shall be interpreted to the effect that the transfer value of the land stipulated in each of the following subparagraphs shall be assessed by the method stipulated in the above provision in light of the land without a publicly assessed individual land price, and otherwise, it cannot be interpreted to the effect that only the land without a publicly assessed individual land price among the land stipulated in each of the above subparagraphs is applied (the same shall apply in that the land is listed separately in which the determination and public notice of the publicly assessed individual land price is omitted). In addition, in a case where the use of the land is changed, the comparison standard for calculating the publicly assessed individual land price shall also be changed because there is a significant change in the goods, etc. of the land existing before and after the change in the use of the land, and in that case, the application of the previously assessed individual land price to the changed land price shall be deemed to be one of the land without a publicly assessed individual land price under the above provision, and it shall be reasonable to apply the value assessed by the head of the tax office having jurisdiction over the place of tax payment pursuant to

(2) Article 164 (1) 3 of the Enforcement Decree of the Building Act provides that if the land category of a religious facility is changed due to the change of the purpose of use of a building under the cadastral law, it shall be deemed that the change of the purpose of use of the land is considerably difficult to apply to the competent authority within 60 days from the date of the change of the purpose of use of the land (such as the alteration of the purpose of use of a building or the alteration of the purpose of use of a building) and the land category under the cadastral law, such as the alteration of the purpose of use of the land category or the alteration of the purpose of use of a building under Article 164 (1) of the Enforcement Decree of the Building Act; Article 164 (1) 3 of the Enforcement Decree of the Building Act is one of the land without an individual land price; Article 164 (1) of the same Enforcement Decree of the Building Act; Article 21 of the Cadastral Act provides that the change of the purpose of use of a building or an urban natural park facility, such as the alteration of use of the land.

(B) Based on this point, it is clear that the above land does not constitute a "land whose land category has been changed due to the change of the form and quality of the land or the change of the use of the land under the cadastral law" under Article 164 (1) 3 of the Enforcement Decree, since the land category was changed from the land category to the land site due to the construction of Class 1 neighborhood living facilities on that ground. Thus, the above land does not constitute a "land whose land category has been changed due to the change of the form and quality of the land or the change of the use of the land under Article 164 (1)

3. Conclusion

Therefore, the disposition of this case shall be revoked in an unlawful manner, so the plaintiffs' claim shall be accepted as reasonable, and the judgment of the court of first instance is unfair as it is so unfair as the judgment of the court of first instance differs from this conclusion, and it is so decided as per Disposition with the cancellation of the disposition of this case.

Relevant statutes

former Income Tax Act (amended by Act No. 7335 of Jan. 14, 2005)

Article 94 (Scope of Transfer Income)

(1) Transfer income shall be the following incomes generated in the relevant year:

1. Income accruing from transfer of land (referring to a lot of land subject to registration of land category in the cadastral record under the Cadastral Act) or buildings (including the facilities and structures annexed to such buildings);

Article 96 (Transfer Price)

(1) The transfer value of assets referred to in Article 94 (1) 1 and 2 shall be based on the standard market price at the time of the transfer of the assets concerned.

1. Acquisition value:

(a) In case of assets pursuant to the provisions of Article 94 (1) 1 and 2, the standard market price at the time of the acquisition of such assets;

Article 99 (Computation of Standard Market Price) (1) The standard market price prescribed in the main sentence of Article 96 (1), the main sentence of Article 97 (1) 1 (a), Articles 100 and 114 (5) shall be determined as follows:

1. Land or buildings as provided in Article 94 (1) 1:

(a) Land;

The individual officially assessed land price under the Public Notice of Values and Appraisal of Lands, etc. Act (hereinafter referred to as the “individual assessed land price”): Provided, That the price of land for which no officially assessed individual land price exists, shall be that assessed by a method as determined by the Presidential Decree, taking into consideration the officially assessed individual land price of neighboring similar lands, and in other areas as

Enforcement Decree of the same Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005)

Article 164 (Assessment of Standard Market Price of Land and Building)

(1) For the purpose of the proviso of Article 99 (1) 1 (a) of the Act, the term “amount appraised by such methods as determined by the Presidential Decree” means the value appraised by the chief of the district tax office having jurisdiction over the place of tax payment (where there is a difference between the chief of the district tax office having jurisdiction over the place of tax payment and the chief of the district tax office having jurisdiction over the location of the relevant land, it shall be the value of nearby land whose formation factors are similar, such as land category and utilization status, etc. without a publicly assessed individual land price falling under any of the following subparagraphs, and which is the standard land price. In this case,

1. Newly registered land under the Cadastral Act;

2. Any land partitioned or merged under the Cadastral Act;

3. Land whose land category has been changed due to the change of land form and quality or change of use;

4. Land (including State and public land) for which a determination and public announcement of the officially assessed individual land price are omitted;

(3) In the application of Article 99 (1) 1 (a) of the Act, where any acquisition or transfer is made before the new standard market price is publicly announced, it shall be based on the immediately preceding standard

The Gu Land Price Public Notice and Evaluation of Land, etc. Act (Act No. 7335 of January 14, 2005)

(1) The court shall have jurisdiction over the application of the Civil Procedure Act.

Article 10 (Application of Officially Assessed Land Price)

(1) Where the State, local government-invested organizations under the Framework Act on the Management of Government-Invested Institutions, government-invested institutions under the Framework Act on the Management of Government-Invested Institutions, or other public organizations prescribed by the Presidential Decree calculate the price of land for the following purposes, it shall maintain a balance between the price of the land and the officially announced price of the reference land on the basis of the officially announced price

(2) Where the Minister of Construction and Transportation deems it necessary for the calculation of land prices for the purposes under paragraph (1), he shall prepare a standard comparison table on the factors for establishing the land prices of the reference land and that of the land to be calculated by himself (hereinafter referred to as “land price ratio table”) and provide it to the relevant administrative agencies, etc., and the relevant administrative agencies, etc. shall

Article 10-2 (Determination, Public Announcement, etc. of Officially Assessedd Individual Land Price)

(1) The head of a Si/Gun/Gu shall, through deliberation by the Si/Gun/Gu Land Appraisal Committee under Article 12-2, determine and publicly announce the price per unit area of an individual land (hereinafter referred to as "individually announced land price") within his/her jurisdiction as of the basic date of the officially announced land price each year in order to use it for the assessment of land prices for the imposition of development charges under the Restitution of Development Gains Act and for other purposes prescribed by other Acts and subordinate statutes: Provided, That he/she may choose not to determine and publicly announce the officially announced land price for the land which is not subject to the imposition of taxes or charges, etc. selected as the standard land price, and other land prescribed by Presidential Decree,

(2) The head of a Si/Gun/Gu shall determine and publicly announce the officially assessed individual land price for the land for which division, consolidation, etc. have occurred after the construction work date.

(3) Where the head of a Si/Gun/Gu determines and publicly announces the officially assessed individual land price, he/she shall ensure that the officially assessed land price of one or more reference land or more deemed to have similar usefulness to the relevant land is balanced.

(8) Except as otherwise expressly provided for in paragraphs (1) through (7), matters necessary for the calculation, verification, determination, and public announcement of the officially assessed individual land price, hearing opinions of interested persons, designation of appraisal business entities, etc. shall be

Enforcement Decree of the Public Notice of Values and Appraisal of Real Estate Act (amended by the Enforcement Decree of the Public Notice of Values and Appraisal of Real Estate Act No. 18677 of January 14, 2005)

Article 12-2 (Individual Land Price of Land in Case of Division, Consolidation, etc.)

(1) "Land for which division, consolidation, etc. have occurred" in Article 10-2 (2) of the Act means any of the following land:

1. Any land partitioned or merged under the Cadastral Act;

2. Land newly registered under the Cadastral Act due to reclamation of public waters, etc.

3. Land whose land category has been changed due to changing the form and quality of land or change;

4. Land for which no officially assessed individual land price exists, which becomes private land due to sale, etc. of the State or public land;

(2) The officially assessed individual land price shall be corrected and publicly announced for land for which a cause under paragraph (1) occurs according to the following classifications:

1. With respect to the land for which a cause under the provisions of paragraph (1) has occurred between January 1 and June 30, the determination and public announcement shall be made not later than October 31, setting the 1st day of July as the basic date;

2. With respect to the land on which the causes referred to in the provisions of paragraph (1) have occurred between July 1 and December 31, the land shall be determined and publicly announced by January 1 of the following year as the base date and by June 30 of the following year.

Article 12-3 (Calculation, etc. of Officially Assessed Assessed Land Price)

(1) The Minister of Construction and Transportation shall determine guidelines for inspection and calculation of the officially assessed individual land price under Article 10-2 (3) and (7) of the Act and notify the head of a Si/Gun/Gu thereof, and the head of a Si/Gun/Gu shall investigate and calculate the officially assessed individual land price

(2) The guidelines for investigation and calculation of the officially assessed individual land price referred to in paragraph (1) shall include the following matters:

1. Matters concerning surveys on the characteristics of land that affect the formation of land prices;

2. Matters concerning the selection of the reference land which serves as the basis for calculating the officially assessed individual land price (hereinafter referred to as "non-standard land");

3. Matters concerning the use of land price comparison table;

4. Other matters deemed necessary by the Minister of Construction and Transportation for investigating and calculating the officially assessed individual land price.

Article 12-8 (Determination and Public Announcement)

(1) The head of a Si/Gun/Gu shall determine and publicly announce the officially assessed individual land price by June 30 (in cases falling under Article 12-2 (2), the date prescribed in each subparagraph of the same paragraph) each year after obtaining confirmation from the Minister of Construction and Transportation pursuant to Article 10-2 (6) of

Cadastral Act

Article 21 (Application for Land Category Change) Any landowner shall, where there exists any land to be changed of land category, file an application with the competent authority within 60 days from the relevant date under the conditions as prescribed by

Enforcement Decree of the Cadastral Act

Article 16 (Application for Land Category Change)

(1) The case where an application for land category change may be made under Article 21 of the Act shall be as follows:

1. Where any construction work such as changing the form and quality of land is completed under related statutes, such as the National Land Planning and Utilization Act;

2. End in the case of a change in the use of land or buildings; and

National Land Planning and Utilization Act

Article 2 (Definitions) The definitions of terms used in this Act shall be as follows:

15. The term "special-purpose area" means the utilization of land and the building-to-land ratio (referring to the building-to-land ratio under Article 47 of the Building Act; hereinafter the same shall apply) ratio (referring to the building-to-land ratio under Article 4

An area determined by an urban management planning not to overlap with one another in order to utilize land efficiently and promote the public welfare by restricting the height, etc.

16. The term "special-purpose district" means an area determined by an urban management plan in order to prevent any disorderly spread of urban districts, to promote land utilization in a planned and phased stages, to comprehensively adjust land use, etc. by prescribing separate strengthening or relaxing restrictions on special-purpose areas and special-purpose districts for the use of land, building-to-land convergence rates, buildings, etc.

Article 36 (Designation of Special-Purpose Areas)

(1) The Minister of Construction and Transportation or the Mayor/Do governor shall determine the designation or alteration of specific use areas falling under any of the following subparagraphs by an urban management

1. Urban area: To be designated under the category falling under one of the following items:

(a) Residential area; Areas necessary to protect peaceful dwelling and sound living environment;

(b) Commercial area; Areas necessary for the increase of conveniences for commerce and other businesses;

(c) Industrial area: Area necessary for enhancing conveniences for industries; and

(d) Green area; Areas in need of conservation of green areas in order to protect natural environment, farmland and forests, health and sanitation, safety, and to prevent any disorderly expansion of cities;

2. Control area; To be designated under the category falling under one of the following items:

(a) Conservation and control area: Area that needs conservation for the protection of the natural environment, forest conservation, water pollution prevention, securing green space, conservation of ecosystems, etc., but it is difficult to designate and manage as a natural environment conservation area in consideration of the relationship with neighboring specific

(b) Production management area: An area requiring management for agriculture, forestry, fishery production, etc., but it is difficult to designate and manage as an agricultural and forest area in consideration of the relationship, etc. with the surrounding special-purpose area;

(c) A confirmed control area: An area in need of planned and systematic control which is an area expected to be integrated into an urban area, or intended for restricted utilization and development in view of the natural environment;

3. Agricultural and forest area;

4. Natural environment conservation areas.

(2) The Minister of Construction and Transportation or the Mayor/Do governor shall determine any of the following special-purpose districts by an urban management plan:

Article 37 (Designation of Specific-Use District)

1. Scenic district: District required for protecting and creating the scenery;

2. Fine view district: District required for maintaining the fine views;

3. Height district: Districts requiring to regulate the minimum limit or maximum limit on the height of buildings, in order to create pleasant environments and to make a high-level utilization of land and its improvements;

4. Fire-prevention district; Districts needed to prevent the danger of fire;

5. Disaster-prevention district; Districts needed to prevent the cultural properties, landslides, ground collapse and other disasters;

6. Conservation district: District required for protecting and keeping the cultural properties, major installations and areas of great conservative value culturally and ecologically;

7. Facility protection district: District required for protecting school facilities, public facilities, harbors or airports, making business intelligence efficient, safe aircraft operation, etc.;

8. Community district: District in order to upgrade communities within the green area, control area, agricultural and forest area, natural environment conservation area, or urban natural park area; and

9. Development promotion district: District in need of a intensive development and consolidation of the residential function, commercial function, industrial function, circulation and distribution function, tourism and recreation function, etc.;

10. 특정용도제한지구 : 주거기능 보호 또는 청소년 보호 등의 목적으로 청소냔 유해시설 등 특정시설의 입지를 제한할 필요가 있는 지구

11. Other districts as prescribed by the Presidential Decree.

(2) The Minister of Construction and Transportation or the Mayor/Do governor may, when it is deemed necessary, subdivide and designate again the specific use district falling under each subparagraph of paragraph (1) by decision of an urban management plan

(3) Where it is deemed necessary for regional conditions, a Si/Gun company may determine by Municipal Ordinance of the relevant City/Do matters concerning the name and purpose of the special-purpose district, prohibition of and restrictions on construction and other acts, etc. by designating or altering the special-purpose district other than that under each subparagraph of paragraph (1), pursuant

Article 38 (Designation of Development Restriction Zones)

(1) In order to prevent any disorderly expansion of cities and to preserve the natural environment surrounding cities in order to ensure the healthy living environment for urban citizens, the Minister of Construction and Transportation may designate development-restricted areas or determine modifications thereof through an urban management plan where it is deemed necessary to restrict development of a security city at the request of the Minister of National Defense.

(2) Matters necessary for designating or changing development restriction zones shall be prescribed separately by other Acts.

Article 38-2 (Designation of Urban Natural Park Zones)

(1) Where the Mayor/Do Governor deems it necessary to restrict the development of mountainous districts with good vegetation in urban areas in order to protect the natural environment and scenery of cities and to provide city citizens with sound leisure resting spaces, he/she may determine the designation or alteration of urban natural park areas through an urban management plan.

(2) Necessary matters concerning designating or changing urban natural park areas shall be separately prescribed by other Acts.

Article 39

(1) In case where the Minister of Construction and Transportation deems it necessary to withhold the urbanization of an urbanization-coordination zone for a specified period of time as determined by the Presidential Decree in order to prevent any disorderly urbanization of urban areas and their surrounding areas and to promote planned and phased development, he may determine the designation or alteration of the urbanization-coordination zone by

(2) The determination of the urban management planning concerning the designation of the market price and adjustment zone shall lose its validity from the day following the expiration of the period for reservation of market price under paragraph (1). In this case, the Minister of Construction and Transportation shall publicly notify such fact.

Article 40 (Designation of Fishery Resources Protection Zones) The Minister of Construction and Transportation may determine, in person or at the request of the heads of related administrative agencies, the designation or alteration of public waters necessary for the protection and fostering of fishery resources, or land adjacent thereto by urban management planning.

Building Act

Article 2 (Definitions)

(2) The uses of buildings under paragraph (1) 2-2 shall be classified as follows, and the detailed uses of buildings belonging to each usage shall be prescribed by Presidential Decree:

1. Single houses;

2. Apartment houses;

3. Class I neighborhood living facilities;

4. Class II neighborhood living facilities;

5. Cultural and assembly facilities;

6. Religious facilities;

7. Sales facilities;

8. Transportation facilities;

9. Medical facilities;

10. Educational and research facilities;

11. Facilities for the aged and children;

12. Training facilities;

13. Sports facilities;

14. Business facilities;

15. Lodging facilities;

16. Amusement facilities;

17. Factories;

18. Warehouse facilities;

19. Storage and treatment facilities for hazardous substances;

20. Automobile-related facilities;

21. Animaland plant-related facilities;

22. Excreta and garbage treatment facilities;

23. Correctional and military facilities;

24. Broadcast and communications facilities;

25. Facilities for power generation;

26. Graveyard-related facilities;

27. Sightseeing and resting facilities;

28. The completion of other facilities as prescribed by the Presidential Decree.