Cho High Court Decision 201J 0054 (Law No. 111.03.09)

It is legitimate that the transfer value of the land transferred en bloc is unclear and divided into the standard market price.

In light of the circumstances of sale and purchase, payment method, etc., the method of payment of the difference between the debt and the sales amount was agreed to be paid as a balance, etc., it is legitimate to calculate the transfer value by parcel according to the standard market price on the ground that the distinction between the transfer value of each land is unclear.

Article 100 of the Income Tax Act

Article 166 of the Enforcement Decree of Income Tax Act

2011Guhap4873 Revocation of Disposition of Imposing capital gains tax

KimA

Deputy Director of the Tax Office

April 5, 2012

April 19, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing capital gains tax of KRW 000 for the year 2008 against the Plaintiff on October 1, 2010 is revoked (the date of disposition stated in the written complaint’s claim and the “tax amount of KRW 000 for August 25, 201” is apparent that it is a clerical error).

1. Details of the disposition;

A. On February 8, 1991, the Plaintiff acquired and possessed six parcels of land (hereinafter referred to as "each land of this case") from OOri 000 to 6, Mari-si, Chungcheongnam-si, and transferred these parcels to BB on September 30, 2008 without specifying the price by lots, but did not make a preliminary return of capital gains tax base.

B. On October 1, 2010, the defendant applied the heavy taxation rate of 60% to the land on three lots, such as 00,000, 00, and 000, attached to an unauthorized house which falls under one house for one household among the land in this case, and determined and notified 00 won of capital gains tax for 2008 to the plaintiff by applying the heavy taxation rate of 60% to the land for non-business use, and 00-0 land used as a road on November 4, 2010 to the land for business use (tax rate of 9%) and the land for two parcels, such as 00,000, and 6, etc., to the land for non-business use (tax rate of 60%), and decided and notified 00 won of capital gains tax for 2008 to the plaintiff.

C. On December 13, 2010, the Plaintiff appealed to the Tax Tribunal, and on March 9, 201, the Tax Tribunal rendered a decision that the tax base and tax amount should be corrected according to the results of reinvestigation on the part on the grounds that the land for non-business use is deemed as the land for non-business use and is used as a road.

D. On August 25, 2011, the Defendant calculated the instant key land according to the purport of the re-audit decision, and the transfer value calculated by dividing the total transfer value of each of the instant land on the real estate transaction declaration certificate by parcel of 000 won (00 won for business land, 000 won for non-business land, and 000 won for non-business land): and the acquisition value shall be 000 won for conversion price, and the acquisition value shall be 300 won for the estimated deduction amount (3% for the standard market price) which is 3% of the standard market price at the time of acquisition of the said land, and notified the transfer income tax for the year 2008 (hereinafter “the disposition of this case”).

[Reasons for Recognition] The entire purpose of the arguments, and the non-spe, Gap evidence 1, 2, and 4, evidence 1, 2, and 3, Eul evidence 2, 3, 3, 6, and 12, and 13.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Although the actual transfer value of the instant land is less than KRW 000, the instant disposition that calculated the transfer value of the instant land by calculating the total transfer value of each of the instant land according to the standard market price by the Defendant is unlawful.

(2) Since the cost of the construction of civil engineering and drainage is not less than 000 won, it shall be deducted as necessary expenses.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Determination on the method of calculating the transfer value

Article 10 (2) of the former Income Tax Act (amended by Act No. 9270, Dec. 26, 2008; hereinafter the same shall apply) provides that "where the transfer value or acquisition value is calculated based on the actual transaction price, it shall be separated and calculated as prescribed by the Presidential Decree considering the standard market price at the time of acquisition or transfer where it is unclear that the land and the buildings are divided into the actual transaction price, and Article 166 (6) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301, Feb. 4, 2009; hereinafter the same shall apply) provides that "in applying Article 100 (2) of the Act, the transfer price of the land shall be calculated based on the actual transaction price for each of the above cases, and where it is unclear that the actual transaction price of the land and the buildings are calculated based on the existing market price for each of the above cases, the transfer price shall be calculated according to the provisions of the proviso of Article 48-2 (4) of the Value-Added Tax Act, and that it shall be calculated based on the average market price.

(2) Determination as to the assertion of necessary expense deduction

In accordance with the provisions of Article 114 (7) of the former Income Tax Act and Article 176-2 of the former Enforcement Decree of the Income Tax Act, the calculation of the acquisition value by converting the transfer value of each land of this case into the time of acquisition is lawful, and Article 97 (1) 1 (b) of the former Income Tax Act and Article 163 (6) 1 of the former Enforcement Decree of the Income Tax Act apply the conversion acquisition value to calculate the acquisition value, the necessary expenses of the acquisition value are not actually required, but only 3% of the standard market price at the time of acquisition, and this part of the plaintiff's assertion is without merit.

3. Conclusion

If so, the plaintiff's claim is without merit, it is dismissed, and it is so decided as per Disposition.