Board of Audit and Inspection 2010 depth0145 ( December 23, 2010)

The disposition that calculates the amount subject to non-taxation by deeming that real estate is transferred collectively is legitimate.

In order to increase the amount of non-taxation, it is reasonable to calculate the amount of non-taxation for one household on the premise of comprehensive transfer as there is no evidence to prove that the real estate was sold separately, and the corresponding portion of non-taxation should be deducted even in the acquisition value.

Article 89 of the Income Tax Act

2011Guhap193 Revocation of Disposition of Imposing capital gains tax

Park XX

The Director of the National Tax Service

May 23, 2012

June 27, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition disposition of capital gains tax of KRW 000 against the Plaintiff on June 1, 2010, which exceeds KRW 000,000, shall be revoked.

1. Details of the disposition;

A. On October 2, 2008, the Plaintiff transferred KRW 000, 000, 000-1, 000-2, 000-3 forest land and 9,472 square meters and its ground buildings (hereinafter referred to as “instant real estate”) acquired on April 9, 1998, to the XX school council on October 2, 2008, and reported and paid KRW 000,000,000, including the construction cost, etc. for site preparation, on December 2, 2008.

B. On June 1, 2010, the Defendant recognized only KRW 000 among the KRW 000,000, which the Plaintiff reported as necessary expenses, as necessary expenses, and imposed capital gains tax of KRW 000.

C. The Plaintiff filed a request for examination with the Board of Audit and Inspection on July 27, 2010 against the Defendant’s above disposition of imposition, but was dismissed on December 27, 2010.

D. Meanwhile, on March 26, 2012, the Defendant calculated a 148 square meters of a warehouse among the instant real estate as at the time of the said disposition by excluding the 148 square meters of a housing area from the housing area, and calculated a 190 square meters of a housing area and 1,900 square meters of a appurtenant land (10 times of a housing area) for one house subject to non-taxation of capital gains tax. However, since the housing area is larger than 190 square meters of a warehouse with a 190 square meters of a housing area, the Defendant decided to reduce KRW 338 square meters of a building, the total building area, and 3,380 square meters of a appurtenant land (10 times of a housing area) for one house for one household subject to non-taxation of capital gains tax, on the ground that the amount of non-taxation was increased from 000 to 00 won of the initial disposition (hereinafter “the instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 7, Eul evidence 1 to 4, and Eul evidence 8, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Of the instant real property, the amount subject to non-taxation for one house for one household among the instant real property is KRW 000,000, which is the actual building value (=unauthorized house 000 won + warehouse 000 won) and KRW 000,000, which is the aggregate of the proportional value based on the standard market price of land attached to one house for one household.

(2) If it is impossible to calculate the actual building price, the house price per household among the instant real estate is KRW 000 (=3,80 square meters of real estate area 3,380 square meters x 000 square meters of real estate area subject to non-taxation ± 000 square meters of real estate value ±7,062 square meters of real estate value ± among the instant real estate).

(3) In rendering the instant disposition, the Defendant set the Plaintiff’s acquisition price of the instant real estate at a lower level without reasonable grounds.

(4) The full amount of the site construction cost related to the Plaintiff’s instant real estate, the full amount of the registration tax, and the litigation cost related to the instant real estate should be recognized as necessary

(5) The Defendant’s disposition of this case on a different premise must be revoked in an unlawful manner.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

(1) Determination on the amount subject to non-taxation for one house among the instant real property

First, as to the assertion that the amount subject to non-taxation should be calculated according to the actual value of an unauthorized house and warehouse among the instant real estate, each statement of evidence Nos. 12 and 13 (including the provisional number) is insufficient to recognize the actual value of the instant real estate as KRW 000 and the actual value of the warehouse is KRW 000, and there is no other evidence to acknowledge the said assertion. The Plaintiff’s assertion on this part is without merit.

Next, in light of the purport of the argument that the remaining real estate was sold separately from the real estate in this case, the amount of non-taxation should be calculated on the basis of only the sale price of the 000 real estate in this case. In light of the purport of the argument that the sale price of the 000 real estate in this case should be calculated on the basis of the 000 real estate, the sales contract was prepared separately for the Plaintiff to sell the 000 real estate in this case and the remaining real estate in this case to 000 won while selling the 00 real estate, but the above facts alone are insufficient to recognize that the remaining 00 real estate was sold separately from the real estate in this case, and the transaction price of the 000 won real estate in this case was 00 won. However, according to the premise that the sales contract of this case was written on September 30, 2008, the sale price of the 000 real estate in this case's real estate in this case's aggregate sale price of the real estate in this case was 0000.

(2) Determination on the determination of acquisition value

In calculating the transfer value in calculating the transfer value, the tax-exempt portion shall be deducted in calculating the transfer value, while when calculating the acquisition value, the legitimate transfer value and the acquisition value shall not be offset, and thus, the amount equivalent to the tax-free one house for one household is deducted from the transfer value in calculating the transfer value. Therefore, if the portion equivalent to the tax-free one house for one household is deducted from the transfer value, it is reasonable to deduct the portion equivalent to the tax-free one house for one household from the acquisition value.

(3) Determination as to necessary expenses

First, it is insufficient to recognize that the entry of evidence Nos. 1, 3, and 4 with regard to the instant real estate should be recognized as necessary expenses in the total amount of the site construction cost of the instant real estate, so it is insufficient to recognize that KRW 000 has been paid in excess of KRW 00 with regard to the construction cost of the instant real estate (the amount deposited in the account of the DD Construction Industry that performed the housing site preparation work in the Plaintiff’s name), and there is no other evidence to acknowledge

In full view of the purport of the argument in the statement No. 8 as to the acquisition tax and registration tax, as a whole, 000 won calculated by the Defendant’s acquisition price in the disposition of this case is 000 won for the subject of the transfer income tax of this case (=total acquisition price of 000 won - the amount subject to non-taxation) and registration tax and acquisition tax of 000 won (=the registration tax and acquisition tax of 000 won for the total acquisition price - the amount subject to non-taxation - the amount subject to non-taxation). Thus, the Plaintiff’s assertion on this part is groundless

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.