Seoul Administrative Court-2017-Gu Group-64654 (2.07 December 2018)

Whether the retroactive appraisal amount is recognized when calculating the comprehensive transfer value.

(The same as the judgment of the court of first instance) The calculation of the transfer value of each land, neighborhood living facilities, and housing is not allowed by dividing the total transfer value according to the appraisal value calculated by exceeding the period prescribed by the main sentence of Article 64 subparagraph 1 of the Enforcement Decree of the former Enforcement Decree

Article 100 of the former Income Tax Act shall be calculated on gains from transfer.

2018Nu40326 Revocation of disposition rejecting capital gains tax rectification

Aa Ma

b Head of the Tax Office

Seoul Administrative Court-2017 Gudan-64654 (2.07 December 2018)

2018.07.05

2018.23

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 defendant's rejection of correction of KRW 40,331,460 to the plaintiff on October 20, 2016 shall be revoked.

1. cite of the reasons for the written judgment in the first instance;

The reasons for this Court concerning this case are the same as the entry of the reasons for the judgment of the first instance, except for the dismissal or addition as set forth in Paragraph (2). Thus, the meaning of the language used in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter referred to as the "marbial meaning is the same as the judgment of the first instance)

2. Details to be used or added;

○ The phrase “ July 5, 2016.” of the 2nd five lines is referred to as “ July 25, 2016.”

○ 5 and 6 lines at the second bottom of 2, “The Defendant requested for the correction of KRW 40,331,460 of the capital gains tax.” The portion “The Defendant claimed for the refund of KRW 40,331,460 of the capital gains tax paid in excess when claiming for the correction of the tax base and tax amount by previous report of capital gains tax.”

○ 4 lines from the second bottom to the 2rd bottom shall be drawn up as 's spores'.

○ 3쪽 7˜10줄을 다음과 같이 고친다.

A. The plaintiff's assertion

1) Like Article 60(3) of the Inheritance Tax and Gift Tax Act, and Article 49(2) of the Enforcement Decree of the same Act, even if following the instant provisions regarding the computation of transfer value, it is necessary to regard the appraisal price by retroactive appraisal as the actual transaction price. Therefore, rather than the standard market price, the transfer value of the instant real estate should be calculated proportionally according

(2) As to the method of calculating the transfer value, the standard market price is unreasonable and unfair because it borrowed the publicly notified price that differs from the actual transaction price, while the appraisal price is reasonable and fair. However, in the event that the distinction between the value of land and buildings, etc. is unclear, the provision of this case limits the evaluation period of the appraisal value, which is the basis for calculating the transfer value, to the period from the beginning date of the taxable period immediately preceding the taxable period to which the transfer date belongs to the transfer date. As such, the provision of this case arbitrarily limits the evaluation period to prevent the appraisal value assessed beyond that period from applying the appraisal value and to apply the standard market price, thereby violating the principle of no taxation without law, and excessively infringing the taxpayer’s property right. (iii) The instant appraisal of this case is unconstitutional, and the repair of the building after the transfer of the real estate was conducted by the fair assessment agency, and thus did not affect the result of the instant appraisal.

○ At the bottom of 3 lines "Provided, That the proviso of the same subparagraph shall be added in front of the part "................."

○ At the bottom of the 3 side, the phrase “for a fluent and unboomed portion” is called “for a fluent and unboomed portion.”

○ 4. Subsequent to the main eight lines, the phrase “assumptive” (see, e.g., Supreme Court Decisions 2009Du19465, Feb. 10, 201; 201Du24286, Oct. 15, 201) is added.

Article 97 (1) 1 (b) of the former Income Tax Act, and Article 166 (6) of the former Enforcement Decree of the Income Tax Act are "Article 97 (1) 1 (a) of the former Income Tax Act, Article 163 (9) of the former Enforcement Decree of the Income Tax Act," and "Article 62 (2) of the former Enforcement Decree of the Income Tax Act" are "Article 60 (2)".

○ 5. The following shall be added subsequent to “the results” of the 5th line:

The provision that the transfer value shall be calculated in proportion to the standard market price if there is no appraisal value assessed within a given period, is reasonable to limit the possibility of changing the previous taxation disposition based on the ex post facto appraisal value to a certain extent. The period also exceeds the limit of the discretion on legislative formation. Thus, it cannot be said that the substantial violation of the principle of no taxation without the law or the principle of no taxation without the law or the principle of no taxation equality under the Constitution or that the taxpayer's property right is excessively infringed. 60% of the evidence No. 7-1 and 2 alone is insufficient to recognize that the individual land price of the real estate of this case, the standard market price of neighborhood living facilities, and the individual housing price of the house of this case has been calculated remarkably unreasonable, and there is no other

○ The part of “the text” of the 5th line is called “the text”.

3. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.