Ansan Line (Attorney Jeong-deok et al., Counsel for the defendant-appellant)

Sung Dong-dong Head of Tax Office

February 7, 1983

Of the imposition of capital gains tax of KRW 7,619,898 and defense tax of KRW 1,523,979 on November 30, 1981 against the Plaintiff as of November 30, 1981, the part of the imposition of capital gains tax of KRW 5,589,747 which exceeds KRW 1,117,948 shall be revoked.

The plaintiff's remaining claims are dismissed.

The costs of lawsuit shall be divided into four parts, one of which shall be borne by the defendant, and the remainder by the plaintiff.

The Defendant’s imposition of capital gains tax of KRW 7,619,898, defense tax of KRW 1,523,979 against the Plaintiff on November 30, 1981 shall be revoked.

The judgment that the lawsuit costs shall be borne by the defendant

In full view of the whole purport of pleadings as to Gap evidence 3, Gap evidence 4-2 (Written Decision 1) No. 1-1, No. 1-2, No. 1-3 and No. 4-1, the defendant shall obtain 89 square meters on November 30, 1986, No. 2516, No. 899, Dec. 21, 197, and then obtain 89 square meters on December 21, 197, 197; 300,000,000 won for 50,000 won for 50,000 won for 50,000 won for 50,000 won for 50,000 won for 50,000 won for 50,000 won for 50,000 won for 50,000 won for 60,00 won for 5,05,00 won for 5,05.

The plaintiff argues that since the real estate of this case was sold to the KIKO Industrial Co., Ltd. in real price of KRW 9,970,000, the defendant's act accounting book and determined the transfer value and acquisition value based on the statutory standard price is wrong. Second, the part of the building of this case was newly constructed on September 28, 1976 and the holding period of the plaintiff was over two years, and sold to the KIKO Industrial Co., Ltd. and completed the registration of transfer of ownership on September 5, 1979, and its tax rate was 70/100 because the defendant recognized that the holding period of this case was less than two years and calculated the transfer income tax amount of this case.

First, Article 55 (1) of the Income Tax Act provides that when the act or calculation prescribed by the Presidential Decree of the resident having capital gains is deemed to have reduced unreasonably the tax burden on the income concerned due to transactions with the resident having a special relationship with the resident, the government may calculate the income amount in the year concerned regardless of the resident's act or calculation. According to Article 111 (1) 5 of the Income Tax Act at the time when the taxation requirement of this case is established, the measures to determine the transfer value by the provisional standard amount are justifiable (Article 170 (8) of the Income Tax Act provides that the acquisition value or transfer value shall be calculated based on the market price in the case of denying unfair calculation of the income (Article 170 (8) of the Income Tax Act provides that the current market price is below the market price and there is no proof that there is a special circumstance that the market price is lower than the current market price in this case, the measures that the defendant calculated the capital gains amount in favor of the

Second, I will look at the following points.

According to the provisions of Article 70 (3) 1 and 2 of the Income Tax Act, which had been in force at the time when the taxation requirement of this case was established, the holding period of the land or building is 50/100 or more of the transfer income tax base, and according to Article 53 (1) 1 of the Enforcement Decree of the same Act, the holding period shall be from the date of acquisition of the relevant property to the date of transfer, and according to Article 53 (1) 1 of the Enforcement Decree of the same Act, the date of completion of the construction shall be deemed to be the time of acquisition. Meanwhile, according to subparagraph 2-2 of Article 53 (No dispute over the establishment of this case, it can be recognized that the real estate of this case was newly constructed on September 28, 1976 by the plaintiff, and it is apparent that the plaintiff possessed the above building for 2 years or more to the above KTT Industry Co., Ltd., and thus, it is unlawful to calculate the transfer income tax rate of 10/170 or 10 of this case.

Therefore, the part of the defendant's disposition of this case exceeding KRW 1,17,948 of the above capital gains tax amounting to KRW 5,589,747 is unlawful, and thus it shall be revoked. Since the plaintiff's claim of this case is legitimate only within the above limit of recognition, the remaining claim is justified, so it is dismissed, and it is so decided as per Disposition by applying Article 89,92 of the Civil Procedure Act Article 14 of the Administrative Litigation Act as to the burden of litigation

February 28, 1983

Judges Kim Jong-ju (Presiding Judge)