Busan District Court 2015Guhap20894

The early appellate court 2014 Deputy 3768

The acquisition value of the real estate acquired and sold by inheritance shall not be calculated as the conversion value.

In addition to the calculation of acquisition value by the formula under Article 164 (4) of the former Enforcement Decree of the Income Tax Act, there is no legal basis to regard that the acquisition value should be re-converted at the time of transfer

Article 97 of the former Income Tax Act, Articles 163 and 164 of the Enforcement Decree of the same Act

Busan High Court 2015Nu22653 Revocation of Disposition of Imposing capital gains tax

Park AA

BB Director of the Tax Office

Busan District Court 2015Guhap20894

January 15, 2016

January 29, 2016

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 113,656,950 against the plaintiff on May 12, 2014 by the defendant shall be revoked.

1. Details of the disposition;

가. 원고는 1986. 7. 21. CC DD구 EE동 29-45 전 3,XXX㎡(이하 '이 사건 쟁점토지'라 한다)를 상속으로 취득한 후 2012. 5. 31. 매매대금 1,375,XXX,000원에 양도하였다.

B. The Plaintiff did not file a final return on capital gains tax on the transfer of the instant land (the filing date of the return date on May 31, 2013). On November 29, 2013, the transfer value at KRW 1,375, the actual transaction price is KRW 1,375, the capital gains tax amount is calculated at KRW 165, the capital gains tax amount is calculated at KRW 165, the capital gains tax amount is at KRW 240, the capital gains tax amount is at KRW 380, and the payment was not made,

C. On the other hand, when filing a re-report after the end of December 10, 2013, the Plaintiff reported the amount of tax payable to 0 won by applying the following methods: (a) the transfer value is 1,375, 00 won, which is the actual transaction value; (b) the acquisition value was changed to 353, 353, 182 won, which is calculated by the following methods; and (c) the amount of tax payable to 712, 326 won for the capital gains tax

다. 피고는 2014. 1. 17. 원고에게 기한 후 신고 무납부한 부분에 관하여 2012년 귀속 양도소득세 242,XXX,350원을 납부・고지하였고, 그 후 2014. 2. 24.부터 2014. 3. 5.까지 원고에 대하여 양도소득세 현장확인을 하였는데, 그 결과 취득가액을 과다계상한 부분과 이 사건 쟁점토지 중 양도 당시 농지조건을 갖추지 못한 1,52X㎡를 확인하고 이 부분에 대한 자경농지 양도소득세 감면을 배제한 다음 산출세액을 309,XXX,282원으로 산정하여 2014. 5. 12. 원고에게 2012년 귀속 양도소득세 113,XXX,950원(가산세 61,818,056원 포함)을 추가로 경정・고지하는 처분(이하 '이 사건 처분'이라 한다)을 하였는바, 피고가 필요경비인 취득가액을 계산한 내역은 다음과 같다.

D. The Plaintiff filed an appeal with the Tax Tribunal on July 24, 2014, but the said appeal was dismissed on December 29, 2014.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 5, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) First argument

The standard market price per square meter at the time of the acquisition of the instant land at the time of the transfer (the Defendant’s calculation) is KRW 42,410 (38,427 according to the Defendant’s calculation), but on this basis, the acquisition price shall be re-converted as of May 31, 201, which is the time of the transfer. However, in order to seek the conversion price, the officially assessed individual land price publicly announced in May 31, 201 is not a KRW 352,00, but a KRW 165,000 shall be applied to the previously announced individual land price in the year 201. Therefore, if the conversion price is specifically calculated, it is unlawful to calculate the acquisition price otherwise or calculate the acquisition price by applying the officially assessed individual land price in the year 2012.

(2) Second argument

It is unlawful for the Plaintiff to impose penalty tax without filing a return in this case on the grounds that the tax base and tax amount of capital gains tax were reported, and that the amount of tax was reduced due to its own farmland, and it is impossible to impose penalty tax of KRW 61,818,056 even though the general non-declaration rate was 20%.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination as to the first argument

Therefore, according to Articles 96(1) and 97(1)1(a) and (b) of the former Income Tax Act (amended by Act No. 11611, Jan. 1, 2013; hereinafter the same shall apply), the transfer value of assets under the provisions of each subparagraph of Article 94(1) of the same Act shall be based on the actual transaction value as at the time of transfer, and if the acquisition value shall be based on the actual transaction value required for the acquisition of the assets, but it is impossible to confirm the actual transaction value as at the time of acquisition, the amount calculated by applying in sequence the transaction value, appraisal value, or conversion value as prescribed by the Presidential Decree may be deemed the acquisition value. Meanwhile, Article 97(5) of the former Income Tax Act provides that the necessary matters concerning the calculation of necessary expenses, such as the scope of the actual transaction value required for acquisition, calculation of gift tax amount, etc. shall be prescribed by the Presidential Decree; accordingly, the main sentence of Article 163(9) of the Enforcement Decree of the Income Tax Act provides that the value of land at the time of inheritance tax or donation under Article 97(1) through 60.

In light of the contents and purport of the above provisions, in case where the transferred assets are general assets other than the assets inherited or donated, if it is impossible to confirm the actual transaction value required for the acquisition of the assets, the acquisition value may be calculated based on the transaction example, appraisal value, or conversion value prescribed by the Presidential Decree. However, in case of the assets inherited or donated, there is no actual transaction value required for the acquisition. Accordingly, there is a separate provision on the actual transaction value required for the acquisition. Accordingly, in case where the land is inherited or donated before a publicly announced individual land price on August 30, 1990 under Article 163(9) of the former Enforcement Decree of the Income Tax Act, the larger amount of the value assessed under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the date of commencing the inheritance or donation, and the value calculated under Article 164(

Therefore, in the case of this case, since the plaintiff acquired the land of this case by inheritance, the market price at the time of commencement of inheritance is difficult to calculate, and furthermore, the time of inheritance is July 21, 1986, so the acquisition price cannot be calculated by applying the officially assessed individual land price pursuant to Articles 60 and 61(1)1 of the Inheritance Tax and Gift Tax Act, and eventually, the value calculated pursuant to Article 164(4) of the former Enforcement Decree of the Income Tax Act shall be the acquisition price. Accordingly, the defendant calculated the acquisition price of the land of this case according to the formula under Article 164(4) of the former Enforcement Decree of the Income Tax Act.

However, under the premise that the acquisition value calculated as above should be converted into the price at the time of transfer, the Plaintiff asserts that the officially assessed individual land price publicly announced in 2011 should be applied in calculating the conversion value. However, there is no legal basis to regard that the acquisition value should be further converted into the price at the time of transfer, in addition to calculating the acquisition value according to the formula under Article 164(4) of the former Enforcement Decree of the Income Tax Act, and therefore, the first Plaintiff’s above assertion on a different premise

D. Judgment on the second argument

According to Article 105 (1) of the former Income Tax Act, a resident who transfers land which is an asset under Article 94 (1) 1 shall file a return on the tax base of capital gains calculated pursuant to Article 92 (2) with the head of the tax office having jurisdiction over the place for tax payment within two months from the end of the month to which the date of the transfer belongs, as prescribed by Presidential Decree. According to Article 110 (1) of the same Act, a resident who has capital gains in the relevant taxable period shall file a return on the tax base of capital gains with the head of the tax office having jurisdiction over the place for tax payment from May 1 to 31

Meanwhile, according to Article 47-2(1)1 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014), where a taxpayer fails to file a return of tax base of income tax (including a preliminary return and a interim return), an amount equivalent to 20/100 of the calculated tax amount under the Income Tax Act shall be determined as an additional tax. With respect to reduction or exemption of income, Article 90 of the former Income Tax Act provides that the amount calculated by applying the tax rate from the tax base of capital gains shall be deducted from the calculated tax amount, which is the amount calculated by applying the tax rate from the calculated tax amount,

However, since the Plaintiff sold the instant land on May 31, 2012, the Plaintiff reported its tax base to the competent tax office until May 31, 2013, but the Plaintiff reported its tax base to the competent tax office on November 29, 2013.

Therefore, it is difficult to view that the Defendant’s imposition of KRW 61,056 (=309,090,282 x 20/100, and less than won), which is an additional tax equivalent to 20/100 of capital gains tax calculated at KRW 309,00,000,000,000,000,000 won, which is an additional tax for KRW 309,00

3. Conclusion

Therefore, the judgment of the first instance is just, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.