The acquisition cost of the land invested in kind by the reconstruction association from its members

The plaintiff's assertion that the acquisition price of the land invested in kind from the members of the reconstruction association shall be the price calculated by the corporation in the account book within the scope of the market price, and that it shall be calculated from the general sale price.

Article 41 of the Corporate Tax Act Acquisition Value of Assets

Article 72 of the Enforcement Decree of the Corporate Tax Act

1. The plaintiff's claim is dismissed.

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

The defendant's rejection rejection disposition against the plaintiff on January 24, 2006 of the corporate tax for the business year 2004 shall be revoked.

1. Details of the disposition;

A. The plaintiff is a reconstruction housing association that obtained authorization from the head of ○○-si on June 17, 2003 pursuant to Article 44 of the former Housing Construction Promotion Act in order to reconstruct ○○-dong Housing on the ground of ○○○-dong Seoul ○○○○-dong ○○○-dong ○○○-dong ○○○-dong ○○-dong ○○-dong ○○-dong ○○○-dong ○○○-dong ○○○-dong ○○○ ○○-dong ○○

B. On March 31, 2005, the Plaintiff reported the tax base and tax amount of corporate tax for the business year 2004 to the Defendant: (a) the amount of revenue is KRW 1,965,150,240; (b) the amount of sales is KRW 1,572,254,926 (i.e., construction site cost845,718,285 + construction cost + construction cost 2,943,742; (c) the amount of completion at the end of 2,217,206,221). Of the sales cost, the amount of construction site is about KRW 6,00 of the appraised value of the land invested in kind by a partner to the Plaintiff; and (d) the amount of corporate tax calculated at KRW 5,155,71,715,715; and (e) the amount of the last stock is calculated at KRW 845,285,297,394; and (e) the tax base was calculated at the above KRW 3937539,7.

C. On December 1, 2005, when the Plaintiff reported the corporate tax as above to the Defendant, the Plaintiff calculated the acquisition price of the land invested in kind in the partnership based on the market price or actual transaction price. However, when calculating based on the market price, the actual acquisition price of the land constitutes 8,946,00,000 won, and based on this, the corporate tax base and tax amount for the business year 2004 were zero won, and the Defendant filed a request for correction to the effect that it would return the already paid corporate tax amount. Accordingly, the Defendant rejected the above request for correction on January 24, 2006.

Facts without dispute over the basis of recognition, evidence A1 1, 2, A2

2. Whether the disposition is lawful;

A. The plaintiff's assertion

원고는 시공사인 ○○산업개발주식회사와 사이에 재건축공사계약을 체결함에 있어 소위 ̍지분제 ̍ 방식에 의한 공사계약을 체결함으로써 조합은 사업시행자로서의 명의만을 제공하고 실질적인 사업시행은 시공사가 담당하게 되어 일반분양수입 등 수입금액은 사업비로서 시공사에게 전액 귀속되게 되었는바, 조합원이 조합에 현물출자한 이 사건 토지의 가액을 시가 또는 실지거래가액이 아닌 공시지가 또는 감정평가액 등의 추계가액으로 산정하는 경우 실질소득과 아무런 관련이 없는 가공의 이익이 발생하게 되므로, 일반분양가격에서 추가분담금을 뺀 나머지 금액을 이 사건 토지의 시가 내지 실지거래가액으로 보아 계산하여야 하고, 위와 같이 계산하게 되면 원고에게는 법인세를 납부할 의무가 없다.

(b) Related statutes;

○ Acquisition value of assets under Article 41 of the Corporate Tax Act

(1) The acquisition value of assets acquired by a domestic corporation through purchase, production, exchange, gift, etc. shall be the amount falling under any of the following subparagraphs:

1. For assets purchased from a third person, the amount of the purchase price plus incidental expenses;

2. For assets acquired through the corporation's own manufacture, production, construction, or any other similar method, the amount of the cost of production plus any incidental expenses;

3. For assets acquired other than under subparagraphs 1 and 2, the amount as prescribed by the Presidential Decree.

(2) Matters necessary for the calculation of the acquisition value of assets, such as the scope of purchase prices and incidental expenses under paragraph (1) shall be prescribed by Presidential Decree.

○ Denial of wrongful calculation under Article 52 of the Corporate Tax Act

(1) Where the chief of the district tax office having jurisdiction over the place of tax payment or the Commissioner of the competent Regional Tax Office deems that the tax burden of a domestic corporation has been unjustly reduced due to transactions with a person with a special relationship as prescribed by the Presidential Decree (hereinafter referred to as the “person with a special relationship”), he may calculate the amount of income for each business year of the relevant corporation, regardless of the calculation of the amount of income of the relevant corporation (hereinafter

(2) In the application of the provisions of paragraph (1), the standard for calculation shall be the prices (including rates, interest rates, rents, exchange rates and other similar rates; hereafter in this Article the same shall apply) which are, or are to be, applied in sound and generally accepted practices and normal transactions between persons other than persons with a special relationship.

Article 72 of the Enforcement Decree of the Corporate Tax Act: Acquisition value of assets

(1) The acquisition value of assets under Article 41 (1) and (2) of the Act shall be the amount under each of the following subparagraphs:

3. Assets acquired through investment in kind, merger or division: The value or the value of succession included in the book: Provided, That where the market value exceeds the market value, the amount of excess shall be excluded, and where monetary claims, etc. prescribed by the Ordinance of the Ministry of Finance and Economy of financial institutions falling under any subparagraph of Article 61 (2)

Article 89 of the Enforcement Decree of the Corporate Tax Act:

(2) In the application of Article 52 (2) of the Act, if the market price is unclear, the amount calculated by applying in sequence the following subparagraphs:

1. Where there is a value appraised by the appraisal evaluation corporation under the Public Notice of Values and Appraisal of Real Estate Act, the value thereof (in case there are not less than 2 appraised values, the average amount of the appraised values): Provided, That this shall not include stocks;

C. Determination

Article 72(1)3 of the Enforcement Decree of the Corporate Tax Act provides that the acquisition value of assets acquired through investment in kind shall be the value of the assets calculated in the account book: Provided, That if the value exceeds the market value, the acquisition value of the assets acquired by investment in kind means the amount calculated in the account book within the scope of the market value. Here, the increase in the market price refers to the market price under Article 52 of the Corporate Tax Act (Article 14(1)1 (c) of the Enforcement Decree of the Corporate Tax Act), which is applicable or deemed as applicable to sound social norms and commercial practice and normal transactions between unrelated parties (Article 52(2) of the Corporate Tax Act). Article 89(1)1 of the Enforcement Decree of the Corporate Tax Act provides that the acquisition value of the above assets shall not be deemed to be the value of the assets acquired by the appraisal corporation under the Public Notice of Values and Appraisal of Real Estate Act, and the acquisition value of the above assets shall be deemed to be the market price of the above 6000 appraisal corporation’s total appraisal value, and appraisal value of the above 20000 won.

3. Conclusion

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