Whether the reported acquisition value can be recognized as the actual transaction amount

Since it is recognized that the actual transaction price at the time of reporting cannot be recognized or verified, and there is no other account books or other evidential documents that can be recognized or verified, a disposition corrected by the conversion price is legitimate pursuant to the provisions of Acts and subordinate statutes.

Article 114 (Determination, Revision and Notification of Tax Base for Transfer Income and Tax Amount)

1. The request is dismissed.

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

Cheong-gu Office

The disposition that the Defendant imposed capital gains tax of KRW 58,837,673 on the Plaintiff on September 1, 2005 shall be revoked.

1. On October 5, 1981, the Plaintiff purchased and acquired the land listed in the separate sheet (hereinafter “instant land”) from ○○○○ on the land, newly constructed and acquired the building listed in the separate sheet (hereinafter “instant building”) on the land on January 19, 191, and transferred the instant land and building to ○○○○○ on May 3, 2001, and subsequently made a preliminary return and voluntary payment on the tax base of transfer income with the transfer value of KRW 50 million based on the actual transaction value and acquisition value of KRW 417 million as KRW 40,000,000,000. The Defendant recognized the transfer value on September 1, 2005 as stated in the report, but the acquisition value is unclear, and thus, the Plaintiff calculated the remaining tax amount after deducting the transfer value from the actual transaction value as KRW 176-2(2)2 and (3)385,375,785,788,757 and 3757.

2. 이에 대하여 원고는, ○〇〇으로부터 이 사건 토지를 2억 9,600만원에 취득하고, 이 사건 건물을 공사대금 2억 4,000만 원에 신축하였음이 명백한데도 이를 확인할 수 있는 자료가 없다는 이유로 자의적으로 취득가액을 산정하여 이 사건 처분은 위법하다고 주장하므로 살피건대. 관련 법령은 별지 기재와 같은바, 갑 제1, 2호증, 제3호증의 1, 2, 제4호증의 1, 2, 을 제2호증의 1, 2, 제3호증의 1, 2, 3, 4, 제5호증의 1, 2, 제6, 7호증의 기재에 변론 전체의 취지를 종합하면, 원고는 피고에게 양도소득과세표준 예정신고를 하면서 이 사건 토지에 대한 매매계약서 사본과 이 사건 건물에 대한 공사계약서 사본만을 제출하고, 그 밖에 이 사건 토지와 건물의 실지취득가액을 확인할 수 있는 영수증이나 장부 등 증빙서류를 제출하지 아니한 사실, 백○○은 1989. 1. 5. 사망하였고, 이 사건 건물 건축시공사 ○○종합건설 주식회사는 2000. 12. 31. 폐업한 후 관련 서류를 파기하여 원고나 피고가 그들을 통하여 이 사건 토지와 건물의 취득가액을 확인할 수 없었던 사실, 피고가 이 사건 양도소득세에 관하여 조사할 당시 원고는 이 사건 토지를 1억 3,000만원 내지 1억 4,000만 원에 취득하였고, 그 매매계약서 원본을 보관하고 있지는 않으며, 원고 본인이 작성하였다는 사실에 대하여는 기억이 나지 않고, 이 사건 건물 신축 공사는 ○○종합개발 주식회사의 ○○○(사촌처남)과 평당 100만 원(약 300평)으로 하여 총 계약금 3억 원에 도급계약을 하였는데 그 도급계약서 등의 서류 원본을 보관하고 있지는 않다고 진술하였고, ○○○의 처 〇○○은 〇○○이 원고에게 이 사건 토지를 양도하였다는 것은 금시초문이라고 진술한 사실, 이 사건 건물의 시공가에 대하여 ○○종합건설 주식회사의 대표이사였던 〇○○은 평당 90만 원 이상으로 책정되었던 것으로 생각되나 증빙서류는 파기되었다고 하고, 그 직원이었던 〇○○은 3억 원 정도였던 것으로 판단된다고 하고 있는 사실, 이 사건 토지와 건물에 대하여 소득세법 시행령 제176조의 2 제3항 제1, 2호에 규정된 취득당시 매매사례가액이나 감정가액은 없었던 사실, 이 사건 토지와 건물의 취득당시 기준시가 합계는 436,259,000원이고, 양도당시 기준시가는 731,920,000원인 사실을 인정할 수 있는바, 이에 따르면 이 사건 토지 매매계약서 사본(갑 제1호증), 이 사건 건물 신축공사 계약서 사본(갑 제3호증의 1)과 도급계약변경확인서 사본(갑 제3호증의 2)만으로 이 사건 토지와 건물의 취득당시 실제거래가액을 인정 또는 확인할 수 없다고 인정되고, 달리 이를 인정 또는 확인할 수 있는 장부 기타 증빙서류가 없다고 할 것이므로 피고가 소득세법 시행령 제176조의2 제2항 제2호와 제3항 제3호에 따라 환산한 취득가액을 산정하고 그에 의하여 양도소득과세표준과 세액을 경정하여 한 이 사건 처분은 법령의 규정에 따른 것으로 적법하다.

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

List of Real Estate

1. ○○○do ○○○○-dong 000-00 square meters larger than 228 square meters;

2. The ground on which ○○do ○○○-dong 000-00.

5 floors of reinforced concrete slive roof

Neighborhood living facilities, amusement facilities, general business facilities

A neighborhood living facility (retail store) with 167.05 square meters per floor;

2. A neighborhood living facility (a multi-house) with 167.05 square meters of two floors;

3 Floors of 167.05 square meters and neighborhood living facilities (a billiard room)

4 167.05 square meters of neighborhood living facilities (offices)

General business facilities (offices) of 167.05 square meters per five stories;

The amusement facilities (general amusement facilities) of 161.9m2 below ground shall be closed.

Relevant statutes

Income Tax Act (amended by Act No. 6557 of Dec. 31, 2001)

Article 94 Scope of Transfer Income

(1) The transfer income shall be the following incomes generated in the current year:

1. Income accruing from transfer of land (referring to a lot of land subject to registration of land category in the cadastral record under the Cadastral Act) or buildings (including the facilities and structures annexed to such buildings);

Article 95 Transfer Income Amount

(1) The transfer income amount shall be the amount calculated by deducting the special long-term holding deduction amount from the amount (hereinafter referred to as “transfer marginal profits”) obtained by deducting the necessary expenses under Article 97 from the total gross income amount of transfer income under Article 94 (hereinafter referred to as “transfer value”).

(2) The term "special long-term holding deduction amount" in paragraph (1) means the amount calculated pursuant to the classification falling under each of the following subparagraphs with respect to the assets under Article 94 (1) 1 (excluding the unregistered transferred assets under Article 104 (3)), the holding period of which is not less than three years:

1. Those the holding period of which is not less than 3 years and less than 5 years;

10/100 of the gains on transfer;

2. The holding period of the relevant assets is not less than five years and less than ten years; and

15/100 of the gains on transfer;

3. The holding period of the relevant assets is ten years or more.

30/100 of the gains on transfer;

(4) The holding period of assets under paragraph (2) shall be the date of acquisition of the relevant assets to the date of transfer: Provided, That in case of Article 97 (4), the donated spouse shall be counted from the date of

(5) Necessary matters concerning the calculation of transfer income amount shall be prescribed by Presidential Decree.

Article 96 Transfer Price

(1) The transfer value referred to in Article 94 (1) 1 and 2 shall be based on the standard market price at the time of transfer of the assets concerned: Provided, That where the assets concerned fall under any of the following subparagraphs, it shall be based on the actual transaction price:

6. Where the transferor reports the actual transaction price at the time of transfer and acquisition to the chief of the tax office having jurisdiction over the place of tax payment by the deadline for final return under Article 110 (1

Article 97 (Calculation of Necessary Expenses in Transfer Income)

(1) In the calculation of gains on transfer of a resident, the necessary expenses to be deducted from the transfer value shall be as follows:

1. Acquisition value:

(a) In case of assets as prescribed in Article 94 (1) 1 and 2, the standard market price at the time the assets are acquired: Provided, That in case where the assets concerned fall under any of Article 96 (1), it shall be based on the actual transaction price required for the acquisition of such assets;

(c) In the case of the proviso of item (a) or (b), where it is impossible to confirm the actual transaction price at the time of acquisition, the value as determined by the Presidential Decree considering the value, etc. under Article

2. Capital expenses, etc. prescribed by Presidential Decree;

4. Transfer expenses, etc. prescribed by Presidential Decree.

(5) Matters necessary for calculation of necessary expenses, such as the scope of actual transaction price required for acquisition and calculation of gift tax amount shall be prescribed by Presidential Decree.

Article 98 Time of Transfer or Acquisition

In calculating gains on transfer of assets, the time of acquisition and transfer shall be determined by Presidential Decree.

Article 99. Determination of Standard Market Price

(1) The standard market price pursuant to the provisions of the main sentence of Article 96 (1), the main sentence of Article 97 (1) 1 (a), Articles 100 and 114 (5) shall be as follows:

1. Land or buildings as provided in Article 94 (1) 1:

(a) Land;

The individual officially assessed land price under the Public Notice of Values and Appraisal of Lands, etc. Act (hereinafter referred to as the “individual assessed land price”): Provided, That the price of land for which no officially assessed individual land price exists, shall be that assessed by a method as determined by the Presidential Decree, taking into consideration the officially assessed individual land price of neighboring similar lands, and in other areas as

(b) Buildings:

The value calculated and publicly announced by the Commissioner of the National Tax Service at least once a year in consideration of the new construction price, structure, use, location, year of new construction of a building (excluding buildings falling under item (c))

(c) For multi-unit houses (including land annexed thereto) located in an area designated by the Commissioner of the National Tax Service as multi-unit houses which own the building by sharing the land attached to the building and own the building separately, the value of the land and the building calculated and publicly announced en bloc by the Commissioner of the National Tax Service at least once a year taking into account

§ 100. Calculation of gains on transfer

(1) In calculating the gains from transfer, if the transfer value is based on the actual transaction value (including the value provided in Article 96 (3) and the amount of transaction example or appraised value, etc. provided in Article 114 (5) in cases where the value of transaction example or appraised value is applicable), the acquisition value shall also be based on the actual transaction value (including the value provided in Article 97 (7) and the amount of transaction example, appraisal value, conversion value, etc. provided in Article 114 (5) in cases where the transaction example, appraisal value, conversion value, etc. is applicable), and if the transfer value

(3) Matters necessary for calculating the gains on transfer shall be prescribed by the Presidential Decree.

Article 114 (Determination, Revision and Notification of Tax Base for Transfer Income and Amount of Tax

(1) If a person who is liable to make a preliminary return under Article 105, or who is liable to make a final return under Article 110, fails to do so, the chief of the district tax office having jurisdiction over the place of tax payment or the director of the regional tax office having jurisdiction over

(2) If any omission or error is found in the details of return filed by a person who has made a preliminary return under Article 105 or a person who has made a final return under Article 110, the superintendent of the regional tax office having jurisdiction over the place of tax

(4) The chief of the regional tax office having jurisdiction over the place of tax payment or the director of the regional tax office shall, where he decides or revises the tax base for transfer income and the tax amount under paragraphs (1) through (3), follow the values under Articles 96

(5) In applying the provisions of paragraph (4), in case where the transfer price or acquisition price is based on the actual transaction price, and where it is impossible to recognize or confirm the actual transaction price at the time of transfer or acquisition of the relevant assets by the books or other documentary evidence on the grounds as determined by the Presidential Decree, the transfer price or acquisition price may be determined or corrected by the survey of the transaction example price, appraisal price, conversion price (referring to the acquisition price converted by the actual transaction price, sale price or appraisal price by the method

Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 17296 of July 7, 2001)

§ 163. Necessary expenses for transferred assets

(12) The term “value as prescribed by the Presidential Decree” in Article 97 (1) 1 (c) of the Act means the value under Article 176-2 (2) through (4).

§ 176-2 Estimationd Decision and Revision

(1) The term “grounds prescribed by the Presidential Decree” in Article 114 (5) of the Act means the case falling under each of the following subparagraphs:

1. Where there are no books, sales contracts, receipts, and other evidential documents necessary to confirm the actual transaction price at the time of transfer or acquisition, or important parts are incomplete;

(2) The term “acquisition price converted by the method prescribed by the Presidential Decree” in Article 114 (5) of the Act means the acquisition price converted by the method in the following subparagraphs:

2. In the case of the rights to acquire the land and buildings under Article 96 (1) 1 through 6 of the Act (the provisions of subparagraph 6 shall apply only to the assets acquired before the date of acquisition by legal fiction under paragraph (4)) and the real estate under Article 162-2 (1) of the Act, the amount calculated by the following formula:

The standard market price at the time of transfer (in case of Article 164 (7), the standard market price at the time of transfer under the provisions of the same paragraph) X at the time of transaction example in paragraph (3) 1 or 2 of the same paragraph / The standard market price at the time of transfer

(3) In case where the transfer value or acquisition value is estimated, determined or revised under Article 114 (5) of the Act, the amount calculated by applying the method falling under each of the following subparagraphs in sequential order: Provided, That in case where the transaction example amount under subparagraph 1 or the appraisal value under subparagraph 2 is deemed to be objectively unfair and unfair from the value, etc. in the transaction with the related parties under Article 98

1. In case where there are transaction examples of assets bearing the identity or similarity with the relevant assets (excluding stocks, etc. of stock-listed corporations or Association-registered corporations) within 3 months before and after the date of transfer or acquisition respectively, such value;

2. Where there exist the appraisal prices which are appraised by two or more certified public appraisal corporations on the relevant assets (excluding stocks, etc.) within three months before and after the date of transfer or acquisition respectively, and deemed to bear credibility (limited to those whose standard date of appraisal is within three months before and after the date of transfer or acquisition respectively), the average value of such appraisal prices;

3. Acquisition price converted under paragraph (2); and

4. The standard market price.