Seoul High Court 2012Nu36950 (2013.03)

Seocho 2010west 1302 ( October 25, 2015)

It is reasonable to calculate capital gains tax according to the substance and substance of the transfer of land after exchange.

In light of the fact that transfer income tax and various transaction costs are generated through land exchange transactions and they do not gain any profit, so it is difficult to understand the purpose of exchange transactions without premised on the avoidance of transfer income tax from the transfer of each land in the future, etc., the imposition disposition that deemed the transfer of land as the owner before the exchange contract is lawful.

Article 14 of the Framework Act on National Taxes

Article 88 (Definition of Transfer) of Income Tax Act

2013Du1583 Revocation of Disposition of Imposing capital gains tax

1.LapA2. GinB

Samsung Head of Samsung Tax Office

Seoul High Court Decision 2012Nu36950 Decided July 3, 2013

December 26, 2013

All appeals are dismissed.

The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. A taxpayer may choose one of the several legal relations in order to achieve the same economic purpose in carrying out economic activities. Therefore, solely on the ground that a taxpayer engaged in an intermediate transaction, which is an economic transaction to reduce the tax burden, the form of transaction chosen by the taxpayer cannot be readily denied without permission, but in special circumstances where it can be deemed that the act constitutes the most active act, it shall be deemed that the taxpayer can be taxed based on the concealed substance subsequent to the act except for the most active act, which does not have the meaning of taxation.

B. citing the reasoning of the judgment of the first instance court, the lower court determined that: (a) Plaintiff 1 acquired the real estate of 3 OB OB 413-8 site value (hereinafter “1 land”) on April 12, 1978; and (b) Plaintiff 2, who was his wife, acquired the transfer income tax of 30 OB 413-1 site value for each of the instant real estate acquired on September 4, 1989 by 1/2 shares in the transfer price of the instant land; and (c) Plaintiff 2, who acquired the transfer income tax of 30 OB 417.7 site value for each of the instant real estate on the grounds that the transfer price of 30 OB 2,000,000 won for each of the instant real estate transferred to Plaintiff 2 and then exchanged the real estate of 30 OB 2,000 won for the exchange of real estate value for each of the instant real estate on each of the instant land; and (d) the Plaintiff acquired the transfer price for each of 27 OB 27.

C. In light of the above legal principles and records, the judgment of the court below is just (Provided, That as long as the exchange transaction of this case is deemed to be the most unfair act, the application of Article 14 (3) of the Framework Act on National Taxes shall be pointed out that the application of Article 14 (3) of the Framework Act on National Taxes need not be separately followed), and there is no error of law such as violating logical and empirical rules and exceeding the limit of the free evaluation

Supreme Court Decision 90Nu3027 Decided May 14, 1991 cited in the ground of appeal is related to a case where the circumstances constituting the act are not recognized, and it is not appropriate to invoke the case as different from this case.

2. Regarding ground of appeal No. 2

Article 100 (2) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009); Article 166 (6) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24638, Jun. 28, 2013); Article 48-2 (4) proviso 1 of the former Enforcement Decree of the Value-Added Tax Act (wholly amended by Presidential Decree No. 24638, Jun. 28, 2013) provides that where the transfer value or acquisition value is calculated based on the actual transaction value and where the land, building, etc. are acquired or transferred at the same time, it shall be entered, and if the distinction between the value of the land, building, etc. is unclear, it shall be calculated based on the standard market price at the time of acquisition or transfer, and the court below determined that the transfer value of each land and each building of this case is lawful.

In light of the relevant provisions, legal principles, and records, the fact-finding and determination by the court below are justifiable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of facts or by misapprehending the relevant legal principles.

3. As to the third ground for appeal

The ground of appeal on the part of the disposition of this case that the penalty tax is unlawful because the tax payment notice separately states the type of penalty tax or does not state the grounds for calculation of tax amount. This part of the ground of appeal is asserted only in the final appeal, and it cannot be a legitimate ground

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.