Appellate Decision 201J 1326 ( December 09, 2011)

It is legitimate to convert the land into the appraisal based on the officially assessed individual land price which has no officially assessed individual land price.

Since the use of land is changed due to changes in the nature, use, form, and quality of land before and after the division of land, it is unfair to apply the officially assessed land price to the land before the division. Therefore, the land divided under the Cadastral Act falls under the land without the officially assessed land price.

Article 99 of the Income Tax Act

Article 164 of the Enforcement Decree of Income Tax Act

2012Guhap967 Revocation of Disposition of Imposing capital gains tax

XX

Head of Eastern Tax Office

May 24, 2012

June 21, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2008 against the Plaintiff on January 5, 201 is revoked.

1. Details of the disposition;

A. On December 8, 1987, the Plaintiff acquired 45,181 square meters of forests and fields 15,181 square meters in Suwon-dong, Busan-dong (hereinafter “the instant land”) and 15-12 forest and fields 98 square meters in mountain 15-12 (hereinafter “the instant land”). On November 16, 207, the instant land 15 in mountain 353-26 forest and field 45,863 square meters (hereinafter “the instant mother parcel number”) were the same land 353-27 forest and field 98 square meters (hereinafter “the instant land”) and the instant land was divided into 353-353 and 3535-353 (hereinafter “the instant land number”). The instant land was divided into 353-35,535 and 3535-35 (hereinafter “the instant land number”).

B. On May 7, 2008, the Plaintiff transferred the instant land and the instant 353-27 land to the Housing Redevelopment Improvement Project Association (hereinafter “instant association”) (=00 won = 000 won (= 000 mix 000 square meters) of the instant land + 000 won of the instant 353-27 land (= 98 m27 m200 won)).

C. On August 31, 2008, the Plaintiff filed a preliminary return on the tax base of transfer income by applying KRW 000 to the transfer value, and KRW 000 to the acquisition value calculated based on the officially assessed individual land price as of January 1, 207; and KRW 000, the converted acquisition value calculated based on the officially assessed individual land price as of January 1, 2008.

D. On the ground that the instant land was divided on January 3, 2008 and without a publicly assessed individual land price at the time of transfer, the Defendant: (a) calculated gains on transfer by re-saleing the converted acquisition value at KRW 000 based on the publicly assessed individual land price, which requested two appraisal agencies to appraise the instant land; and (b) notified the Plaintiff of KRW 00 of the transfer income tax for the year 2008 (hereinafter “instant disposition”).

E. Accordingly, the Plaintiff filed an administrative appeal with the Tax Tribunal, but was dismissed on December 9, 201.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 13, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

Since the land of this case had no change in its characteristics before and after the division, it does not constitute “land without any individual land price” under Article 99(1)1 (a) of the Income Tax Act. Moreover, the land of this case applying the officially assessed individual land price as of January 1, 2007 is identical to the land of this case, and Article 164(3) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21881, Dec. 14, 2009; hereinafter the same) provides that if the land is acquired or transferred before a new standard market price is publicly notified, it shall be based on the immediately preceding market price. Thus, in calculating the conversion acquisition value of the land of this case on May 7, 2008, the officially assessed individual land price as of January 1, 207 should be applied. Nevertheless, the assessment of the conversion acquisition value based on the publicly assessed individual land price as of January 1, 207 and the disposition of this case is unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) On June 19, 2003, the head of Busan Metropolitan City announced the designation of the housing redevelopment area (name of area: x one house redevelopment area) by the Busan Metropolitan City Notice No. 2003-156 on June 19, 2003, and announced the designation of the housing redevelopment improvement area and the housing redevelopment improvement plan by the Busan Metropolitan City Notice No. 2005-368 on December 14, 2005.

2) On September 12, 2007, the head of Suwon-gu Busan Metropolitan City project implementation authorization was granted for the application for authorization for implementation of housing redevelopment project in XX1 area under Article 2007-27 of the Gangseo-gu Busan Metropolitan City Notice. Of the instant land 15 square meters and mountain 15-12 land were included in the land to be expropriated or used.

3) 한편, 이 사건 조합은 2007. 6. 18. 관리처분인가 신청을 하기 위하여 주식회사 OO감정평가법인(이하 'OO감정평가법인'이라 한다)과 주식회사 YY감정평가법인(이하 'YY감정평가법인'이라 한다)에 수용 또는 사용할 토지에 대한 토지감정평가를 의뢰하였다. OO감정평가법인은 2007. 10. 11. 이 사건 산15 토지 중 1,965㎡ 및 이 사건 산15-12 토지에 대하여 토지감정평가 기준일을 2007. 9. 12.로, 감정평가 목적을 '이 사건 사업에 따른 관리처분계획 수립을 위한 종전 자산 및 협의 보상 평가'로 하여 이 사건 산15 토지 중 1,965㎡에 대하여는 ㎡당 000원 합계 000원(= 1,965㎡ x 000원)으로, 이 사건 산15-12 토지에 대하여 는 ㎡당 000원 합계 000원(= 98㎡ x 000원)으로 평가하였다. YY감정평가법인은 2007. 10. 11. 이 사건 산15 토지 중 1,965㎡ 및 이 사건 산15-12 토지에 대하여 토지감정평가 기준일 및 감정평가 목적을 OO감정평가법인과 동일하게 하여 이 사건 산15 토지 중 1,965㎡에 대하여는 ㎡당 000원 합계 000원(= 1,965㎡X 000원)으로, 이 사건 산15-12 토지에 대하여는 ㎡당 000원 합계 000원(= 98㎡ x 000원)으로 평가하였다. 위 감정평가서상 토지평가조서에 의하면, 이 사건 산15 토지 중 1,965㎡는 재개발사업 시행 후 대지권을 형성하는 반면, 공공공지, 어린이공원, 소로로 조성되게 된다.

4) On November 16, 2007, the Plaintiff filed an application for registration conversion with respect to the instant land No. 15 and the instant land No. 15-12 on November 16, 2007, and each of the said land was subject to registration conversion with the instant land parcel number and the instant land No. 353-27, and the instant mother parcel number was divided into the instant land and the instant land with the size of 1,965 square meters incorporated into the redevelopment project district on January 3, 2008.

5) On March 19, 2008, the head of Suwon-gu Busan Metropolitan Government issued an application for authorization of management and disposal plan for housing redevelopment rearrangement project under XX1 district public notification under Article 2008-9 of the Gangseo-gu Busan Metropolitan City public notification. On May 7, 2008, the Plaintiff transferred the instant land and the instant land to the instant association to KRW 000 (=00 won + 000 square meters + 000 won). The transfer price of the instant land was calculated as the average appraisal value of OO certified public appraisal corporation and Y certified public appraisal corporation.

6) On October 31, 2008, the head of Si/Gun/Gu in Busan Metropolitan City, on the present status of use of the instant land or land, and on the remaining 45,863 square meters of the instant plot of land except for the instant plot of land, calculated and publicly announced the officially assessed individual land price as of July 1, 2008. Of the instant plot of land, the officially assessed individual land price for the instant plot of land is KRW 00,000, and the officially assessed individual land price for the remaining parcels of the instant plot of land is KRW 00,000, for the instant plot of land, KRW 45,863 square meters of the instant plot of land except for the instant plot of land.

7) Around November 2010, the Defendant newly calculated the standard market price at the time of transfer by taking into account the appraisal value of the Korea Appraisal Board (hereinafter “AA Appraisal Board”) assessed on May 7, 2008 at the time of the transfer of the instant land as the land for which no officially assessed individual land price exists, and the appraisal value of the AA Appraisal Board Co., Ltd. (hereinafter “A Appraisal Board”). At the time of the said appraisal, the said appraisal was a forest used as a natural forest which is compared with the instant land and was used as a standard natural forest which is compared with the instant land. The comparative standard of the remaining land among the instant land was a site used as a residential land, and the calculated amount was the same as the publicly assessed individual land price as of July 1, 2008

8) The instant land is located at the end of the land adjoining the redevelopment project area among the instant lot number land.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 15 through 20, Eul evidence Nos. 2 through 11 (including provisional number), the purport of the whole pleadings

D. Determination

According to the above facts, when the land of this case amounting to 4% of the original parcel number of this case (i.e., 1,965m2/45,863m2, x100, 200 m2) was incorporated into a redevelopment project zone, the original parcel number of this case was divided to transfer it to the association of this case. The current use of the original parcel number of this case was assessed according to the officially assessed individual land price as of January 1, 2007 as forest land. Since the use status and the officially assessed individual land price of the remaining part of this case excluding the land of this case after division were assessed as forest land before division. On the other hand, since the land of this case was located in the last parcel number adjacent to the redevelopment project zone of this case and was transferred to the association of this case after division or used as land use status of this case at the time of transfer, it is reasonable to view that the change in the original parcel number of the land of this case constitutes a new land price change in the form and quality of the land of this case.

3. Conclusion

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