Whether the capital expenditure can be deducted when calculating the transfer margin under the standard market price.

Even if capital expenditure was made, in case where capital gains are calculated based on the standard market price, the amount of capital expenditure cannot be deducted as necessary expenses separately in addition to the amount equivalent to 7/100 of the tax base amount of the registration tax at the time of acquisition.

The contents of the decision shall be the same as attached.

The plaintiff's claim is dismissed. The costs of lawsuit are assessed against the plaintiff.

1. Circumstances of the imposition disposition;

원고가 1984. 4. 3. 소외 김ㅇㅇ으로부터 ㅇㅇ시 ㅇㅇ동 ㅇㅇ의 ㅇ대 981.4평방미터 및 그 지상건물을 취득하였다가 1988. 8. 12. 이를 소외 김ㅇㅇ에게 양도한 뒤 위 양도에 따른 자산양도차익 예정신고를 함에 있어 취득가액 모두를 기준시가에 의하여 결정하면서 위 건물을 취득한 뒤 그 보수공사비등을 금26,604,000원이 소요되었다 하여 위 양도가액에서 위 취득가액뿐만 아니라 위 건물 보수공사비등까지를 공제한 뒤 이에 따른 양도소득세 및 방위세를 신고납부한데 대하여 피고는 1989. 9. 23. 취득가액 및 양도가액을 기준시가에 의하여 결정하는 경우에는 취득당시 등록과세표준액의 100분의 7에 상당한 금액외에 따로이 자본적 지출액을 공제할 수 없다하여 위 양도당시 시행중이던 구소득세법(1990. 12. 31. 법률 제4281호로 개정되기 전의 것)제23조 제4항 본문, 제45조 제1항 제1호 본문, 제3호, 구소득세법 시행령(1989. 8. 1. 대통령령 제12767호로 개정되기 전의 것) 제94조 제5항의 규정에 따라 양도가액에서 취득가액에서 취득가액 및 취득당시의 등록세과세표준액에 7/100을 곱한 금액만을 필요경비로 공제한 뒤 양도차익을 금39,551,125으로 산출하고 소득세법 및 방위세법의 관계규정에 따라 세액을 산출하여 원고에게 양도소득세 금13,752,490원 및 방위세 금2,750,490원의 부과처분을 한 사실은 당사자 사이에 다툼이 없거나 성립에 다툼이 없는 을제1호증의 1,2,3의 각 기재와 변론의 전취지에 의하여 인정된다.

2. The legality of the disposition.

(i)the assertion of a Party;

In regard to the defendant's assertion that the disposition of this case is lawful on the grounds of the above disposal grounds and applicable provisions of law, the plaintiff acquired the real estate of this case and the construction cost corresponding to capital expenditures such as repairing the building, which requires 26,604,000 won, and such amount should be deducted from the calculation of gains on transfer following the transfer as necessary expenses under the Income Tax Act, so the defendant's disposition of this case should be revoked illegally.

(ii)the applicable legal provisions;

Article 45 (1) of the former Income Tax Act provides for the amount calculated by adding one of the following amounts to the standard market price at the time of acquisition of the asset at the time of acquisition of the asset as necessary expenses to be deducted in the calculation of gains on transfer: Provided, That in cases prescribed by the Presidential Decree, the actual transaction price required for the acquisition of the asset (subparagraph 1), equipment cost and improvement expenses (subparagraph 2), capital expenditure as prescribed by the Presidential Decree (subparagraph 3), and transfer expenses as prescribed by the Presidential Decree (subparagraph 4), while Article 94 (5) of the former Enforcement Decree of the Income Tax Act provides for the amount of gains on transfer by means of the standard market price pursuant to the main sentence of Article 45 (1) 1 of the Act (the provisions concerning actual transaction price required for the acquisition, equipment cost and improvement expenses, capital expenditure, and transfer expenses as prescribed by the Presidential Decree under Article 45 (1) 4 of the Income Tax Act), notwithstanding the provisions of paragraphs (1) through (4) of the same Article, Article 23 (1) 1 of the Income Tax Act provides that the amount shall be multiplied by 7/10/10:

iii)judgments

Even if the Plaintiff made so-called capital expenditures of KRW 26,604,00, as alleged above, when calculating gains from transfer based on the standard market price under the provisions of the Income Tax Act, it is not possible to separately deduct capital expenditures from the amount equivalent to 7/100 of the registered tax base at the time of acquisition in addition to the amount equivalent to 7/100 (Supreme Court Decision 88Nu7187 Decided July 25, 1989). Thus, Article 94(5) of the Enforcement Decree of the former Enforcement Decree of the former Enforcement Decree of the Income Tax Act (amended by Article 94(5) of the former Enforcement Decree of the Income Tax Act (amended by Article 94(1) through (4) of the former Enforcement Decree of the former Enforcement Decree) even in cases where it is impossible to calculate gains from transfer due to reasons prescribed by Ordinance of Ministry of Finance and Economy such as lack of documentary evidence in calculating necessary expenses, notwithstanding the provisions of paragraphs (1) through (4), the Plaintiff’s assertion that such capital expenditures should be deducted from the necessary expenses.

3. Conclusion

Thus, the transfer value and acquisition value of the above real estate shall be determined by the standard market price, and only the amount equivalent to 7/100 of the acquisition value and the registration tax base at the time of its acquisition shall be deducted from the necessary expenses, and the disposition of this case, which was calculated and imposed on the basis of the above transfer income tax and defense tax, is legitimate. Thus, the plaintiff's claim of this case, which caused the above disposition to be unlawful, is dismissed without merit, and the lawsuit cost shall be assessed against