early 2009west0574 (Law No. 29, 2009)

Where land buildings are transferred en bloc and the non-taxable part and the taxable part are mixed, calculation shall be made separately.

Where a land building is transferred collectively and the non-taxable part and the taxable part are mixed, the officially assessed individual land price for the commercial building, the publicly notified price for the commercial building, and the acquisition price and transfer value of the housing and commercial building by applying the individual housing price for the housing;

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

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 31,828,830 against the Plaintiff on January 2, 2009 shall be revoked.

1. Details of the disposition;

A. On March 9, 2004, the Plaintiff acquired the instant land and buildings in KRW 1,460,000 and owned KRW 274.04 square meters (hereinafter referred to as “instant land”) and KRW 687.04 square meters (hereinafter referred to as “instant building”) of the building in Mapo-gu, Seoul, 378-7 site and KRW 378,000,000 for KRW 1,460,000. The Plaintiff transferred the instant land and buildings to a third party on February 29, 2008, KRW 1,580,000 for KRW 30,000,000 for KRW 1,580,000, KRW 130,486,403, reduced the acquisition value, and KRW 1,482,000,000 for the reason that the said land and buildings constitute one house for one household and thus were subject to non-taxation, and thereafter transferred the instant land and buildings to the Defendant 160684.

[Based on the recognition] The evidence Nos. 1-1 to 5, Gap evidence Nos. 2, 3, 5, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 100 (2) of the Income Tax Act, which provides that the transfer value of the commercial building and the commercial building and the commercial building are calculated by applying the officially assessed individual land price to the commercial building, the publicly notified price by the Commissioner of the National Tax Service to the commercial building, and the transfer value and acquisition value to the commercial building on the basis that the transfer value of the commercial building and the commercial building subject to taxation is unclear as the land and the building are transferred en bloc. However, if the land and the building are transferred en bloc, the provisions of Article 100 (2) of the Income Tax Act, which provides that the proportion of the standard market price can be divided according to the ratio of the standard market price, should apply only to the case where all the land and the buildings are subject to taxation. Therefore, it is improper for the defendant to use the method prescribed in Article 100 (2) of the Income Tax Act to determine the distinction between the acquisition subject to non-taxation and the transfer value of the commercial building and the land as a result of the application of the above provision, and thus, the above provision goes against the principle of no taxation without law or prohibition.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

Pursuant to Articles 100(2) and 99(1) of the Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same), Article 166(6) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008); Article 48-2(4) proviso of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 2, 2008; hereinafter the same), where the land and a building are acquired or transferred together, and the classification is unclear, the land shall be calculated in proportion to the individual land price under Article 99(1)1(a) of the Income Tax Act; the house shall be calculated in proportion to the individual housing price under Article 99(1)1(b) of the Income Tax Act; where the land and a building are combined with non-taxable parts; the taxation authority shall separate them; where there is no reason to apply the method of taxation and calculation.

In full view of the purport of the arguments in Gap evidence 1-3 through 5, Eul evidence 3, Eul evidence 2 and 3, the land and buildings in this case are 274.4m2, housing 191.83m21m2, and 495.21m2, which are used as retail stores, sports halls, etc. from the first floor to the third floor above, and the third and fourth floors (three floors are used as housing) are used as housing. The plaintiff's acquisition and transfer of the land in this case and the building in this case are not known as the value of each part because it is difficult to calculate the transfer income tax of this case. Accordingly, the defendant cannot be viewed as calculating the transfer income tax of this case by calculating the transfer income tax of this case as well as the land in this case, the officially assessed land price of the building in this case, the price of the building in this case, the individual housing price of the building, and the acquisition price and transfer value of the building in this case by applying the above individual housing price to the above 2000m2.

3. Conclusion

Thus, the disposition of this case is legitimate, and the plaintiff's claim is dismissed as it is without merit.