Revocation of imposition of capital gains tax

Although the disposition of this case does not violate the principle of trust protection or the principle of trust and good faith, the disposition of this case is justified for the plaintiffs.

Article 104-3 (1) of the Income Tax Act

Daejeon District Court-2012-Gu Group-1559

○○ and 11

AA Head of the Tax Office

April 18, 2017

August 30, 2017

1. Details of the disposition;

A. On January 21, 1969, the price of ○○ Tourism was additionally designated and announced as a tourist destination pursuant to Article 46 of the former Tourism Promotion Act. Since around November 28, 1983, the surrounding area was designated as an additional tourist destination pursuant to Article 46 of the former Tourism Promotion Act, and the area of the tourist destination became 2.15 m2 m2 m2, the area of the tourist destination became 2.15 m2.

B. The plaintiffs acquired real estate as shown in the annexed real estate list as shown in the annexed real estate list, and the real estate in this case located within the instant tourist destination was designated or incorporated as the instant tourist destination around November 28, 1983, which was the date of the change announcement of the designation of the instant tourist destination.

다. 이 사건 관광지 개발을 위한 관광지 조성계획 변경승인이 1985.11.8. AA군 공고 제○○호로 공고된 이후 2〜3년 단위로 거듭하여 이 사건 관광지 조성계획이 변경 또는 변경고시되는 과정을 거치면서 이 사건 관광지는 제1, 2, 3지구로 나뉘어 개발사업이 시행되었는데, 구 관광진흥법 제52조 등에 의하여 2005.8. 10. 미개발된 ○○○○○○ 관광지 지역 토지를 제3지구로 지정하여 충청남도 고시 제2005-○○○호로 제3지구에 대한 이 사건 관광지 조성계획 승인 변경고시가 이루어졌다.

D. The Plaintiffs transferred the instant real estate at AA during the process of acquiring consultation on the public land for the instant tourism district No. 3 district development project, as shown in attached Table 1.

E. The Plaintiffs acquired the instant real estate two years from August 10, 2005, which was the date of the amendment announcement of the instant creation plan, and thus, determined that the special provisions, such as Article 85 of the former Restriction of Special Taxation Act, apply to the transfer of the instant real estate, and accordingly, the Plaintiffs calculated the transfer income tax based on the standard market price not based on actual transaction

F. On November 28, 1983, the Defendant calculated capital gains tax based on the actual transaction price and imposed capital gains tax increased or corrected on the Plaintiffs. The Defendant calculated capital gains tax based on the actual transaction price and imposed capital gains tax increased or corrected on the Plaintiffs.

G. The Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal, but all of them were dismissed.

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

1) On Aug. 30, 2006, the defendant sent official questions to ○○○ ○○ ○○ ○○ Office and expressed the view that “A City is designated as an speculative area on Aug. 19, 2005 and pays transfer income tax as actual transaction price, but where a project operator is transferred before December 31, 2006, the transfer income tax may be paid as the standard market price if the project operator is transferred to the project operator. The plaintiffs believed it transferred the real estate owned by the plaintiffs at the time AA and reported it as the standard market price, and paid it at the time when the period for exclusion of transfer income tax remains long, the disposition of this case was made by the defendant, and thus,

2) In light of the circumstances of the instant disposition, the instant disposition imposing additional tax is unlawful on the grounds that the Plaintiffs, who were liable for tax payment, were not aware of the tax liability or were negligent in performing their duties.

B. Relevant statutes

Omission

C. Determination

1) Whether it violates the principle of trust protection or the principle of trust and good faith

In general, in order to apply the principle of trust and good faith to the tax authority's acts in tax law relations, the tax authority should name the public opinion list subject to taxpayer's trust, there should be no reason attributable to the taxpayer, and the taxpayer should trust the opinion list and act what it is, and the tax authority should make a disposition contrary to the above opinion list, thereby infringing the taxpayer's interest.

According to Gap evidence Nos. 4, 14 and Eul evidence Nos. 7 and 9, the fact that the defendant sent a notice of capital gains tax reduction and exemption, and the notice of the compensation procedure, etc. sent to landowners within the third district of the instant tourist destination including the plaintiffs on Nov. 24, 2006 includes taxation guidance, but among them, it is recognized that the part of the notice includes the information that the capital gains tax may be reported and paid as standard market price.

However, the defendant's above notice contains a general content that it is possible to reduce capital gains tax if it satisfies the criteria under Article 85 of the Restriction of Special Taxation Act, and it is difficult to view that the defendant, through the above notice, issued a statement of opinion that the criteria under Article 85 of the Restriction of Special Taxation Act are satisfied in relation to the transfer of the real estate of this case directly to the plaintiffs and thus it is possible to reduce capital gains tax.

In addition, the tax guidance contained in the notice on the procedures, etc. for compensation for losses in the AA market may change the contents of reduction or exemption due to the amendment of the relevant laws and regulations. As the detailed matters are indicated as follows: "The contact telephone number of the AA Si tax office or the competent tax office is stated at the end of the 35th notification," and the contact number of the AA Si tax office is stated at the end of the 3th notification, and there is no conclusive opinion that the special criteria of Article 85 of the Restriction of Special Taxation Act regarding the transfer of the real estate in this case are all satisfied, and accordingly the capital gains tax is reduced or exempted accordingly. In addition, considering the fact that the AA market is not the tax authority of the capital gains tax and some of the landowners who were incorporated into the designated tourist resort in this case are transferred the real estate to the AA market, and reported and paid the capital gains tax as actual transaction price, the Plaintiffs cannot be deemed to have expressed the view that the special taxation of Article 85 of the Restriction of Special Taxation Act applies to the transfer of the real estate in this case.

2) Determination on the imposition of each additional tax of this case

A) Under the tax law, additional taxes are not imposed in cases where there are justifiable grounds that make it unreasonable for a taxpayer to be unaware of his/her duty to do so, such as where there are circumstances that make it reasonable to present him/her, or where it is unreasonable for the taxpayer to expect the performance of his/her duty to do so, etc.

B) Considering the following circumstances acknowledged by the purport of evidence and the entire argument as to the instant case, it is reasonable to view that the Plaintiffs’ failure to pay capital gains tax on the basis of the actual transaction price, even if they did not pay capital gains tax on the basis of the actual transaction price, there are justifiable grounds that

① In the transfer of the instant real estate at AA, the Plaintiffs reported and paid it as the standard market price after consulting with a tax specialist in relation to the interpretation of Article 85 of the Restriction of Special Taxation Act

② Until the transfer of the instant disposition, the Defendant determined that Article 85 of the Restriction of Special Taxation Act applies to the Plaintiffs, and did not point out any error in the return and payment of capital gains tax based on the standard market price that is not the actual transaction price, and did not receive any particular points from the audit institution regarding the return and payment of land incorporated into ○○○○○○○○ Tourist Site Development Project in 20

③ The Plaintiff transferred the instant real estate to AA, the executor of the instant zone No. 3 District Development Project, which was conducted in accordance with the public notice on the modification of the instant tourist resort creation plan, and the instant real estate transfer was conducted in accordance with Article 58 of the Tourism Promotion Act, and the legal doctrine was established only by the Supreme Court regarding the standard market price at the time of transfer under the Tourism Promotion Act (Supreme Court Decision 2013Du9

C) Therefore, since the Plaintiffs are deemed to have justifiable grounds in paying the transfer income tax on the basis of the standard market price that is not the actual transaction price, the imposition of each of the instant additional taxes on different premise should be revoked as unlawful.

3. Conclusion

Thus, the plaintiffs' claims are justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit.