Incheon District Court 201Guu4385 (29 March 2012)

Early High Court Decision 201J 1492 ( October 17, 2011)

The transfer value shall not violate the same standard principle if the transfer value is converted into the actual transaction value and acquisition value.

The transfer value is the actual transaction value, and even if the acquisition value is calculated based on the conversion value, it cannot be deemed that the same standard principle is not violated, and the successful bid price determined in the voluntary auction procedure of real estate is the actual transaction value. Therefore, it is legitimate to calculate the conversion acquisition value by considering the successful bid

Article 97 of the Income Tax Act

2012Nu10415 Revocation of Disposition of Imposing capital gains tax

Park XX

the director of the tax office of Western

Incheon District Court Decision 201Guhap4385 Decided March 29, 2012

September 27, 2012

October 11, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant's disposition of imposition of capital gains tax of KRW 000 on February 1, 2011 against the plaintiff on February 1, 201 shall be revoked (it seems that penalty tax is included in the recorded tax amount).

1. Quotation of the reasons for the judgment of the first instance;

The reasons why the court should explain in this decision are as stated in the corresponding part of the judgment of the court of first instance, in addition to adding the judgment on the plaintiff's argument in Paragraph 2 below, and therefore, it shall accept it in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional determination as to the Plaintiff’s assertion

A. The plaintiff's assertion

(1) As long as the Defendant did not confirm the actual transaction price at the time of the Plaintiff’s acquisition of the instant commercial building, the instant disposition imposing the transfer income tax of the instant commercial building by deeming the conversion price based on the successful bid price based on the voluntary auction price of the instant commercial building as the acquisition price of the instant commercial building was unlawful as it violates

(2) The fact of acquiring the pertinent real estate by auction in order to include the bid price in the "actual transaction price at the time of transfer" in the formula of conversion acquisition value under Article 176-2 (2) 1 of the Enforcement Decree of the Income Tax Act, which applies to the disposition of this case (hereinafter referred to as "the conversion price provision of this case"). As long as the Plaintiff did not acquire the pertinent commercial building by auction, the conversion price calculated by the Defendant by recognizing the bid price as the "actual transaction price at the time of transfer" under the conversion price provision of this case cannot be deemed as the acquisition price of the commercial building of this case.

(3) The method of calculating capital gains tax based on the standard market price pursuant to Article 164(9)2 of the Enforcement Decree of the Income Tax Act (hereinafter “the standard market price provision of this case”) that applies to the disposition of this case is not a discretionary provision, but a binding provision. Thus, in calculating the capital gains tax of this case, the calculation of capital gains based on the standard market price according to the standard market price provision of this case also conforms to the same standard principle, and the judgment of the court of first instance, which otherwise determined, excluded the Plaintiff’

B. Determination

(1) Article 100(1) of the former Income Tax Court (amended by Act No. 10408, Dec. 27, 2010; hereinafter referred to as the "Income Tax Act") which applies to the instant disposition with respect to the assertion of violation of the same standard principle concerning the calculation of gains from the transfer of the commercial building of this case provides that the acquisition value shall be based on the actual transaction value if the transfer value is based on the actual transaction value in calculating gains from the transfer of real estate, and the acquisition value shall also be based on the standard market price when the transfer value is based on the standard market price. The above provision explicitly states that the transfer value shall be based on the actual transaction value and the appraisal value in the actual transaction value under the same standard, and the acquisition value shall be based on the standard market price.

Therefore, even though the above transaction example, appraisal value, or conversion value cannot be viewed as the actual transaction value itself, the provision on the calculation of the transfer margin of this case can be deemed as a legislative legislative measure to extend the same standard principle, so long as the transfer value is confirmed only in the real transaction value, according to the provision on the calculation of the transfer margin of this case, the transfer value shall be deemed as the actual transaction value, and the acquisition value shall not be deemed as a violation of the same standard principle even if the transfer margin is calculated with the conversion value.

(2) As to the allegation of illegality regarding the application of the conversion price provision of this case

In a case where the ownership of real estate is transferred by a successful bid in the procedure of voluntary auction for the execution of mortgage, the successful bidder acquires the ownership of the real estate subject to capital gains tax, which constitutes the transfer of assets subject to capital gains tax, and in a transfer by voluntary auction as above, the taxable object of capital gains tax is the successful bid price, which belongs to the owner of the real estate at auction (see Supreme Court Decision 86Nu60, May 27, 1986). Thus, barring any special circumstance, the transfer by voluntary auction constitutes the actual transaction price determined in the auction procedure, and this does not change even if the owner of the real estate subject to capital gains tax did not acquire the ownership by the auction at auction.

Therefore, even if the plaintiff did not acquire the commercial building of this case by auction as alleged, the acquisition value converted from the price at the time of the plaintiff's acquisition of the commercial building of this case by considering the successful bid price (000 won) of this case as the actual transaction price at the time of transfer as stipulated in the conversion price provision of this case shall be calculated pursuant to the above provision, and it shall not be deemed that there is any error of law in calculating transfer margin of the commercial building of this case by deeming

Ultimately, we cannot accept this part of the Plaintiff’s assertion.

(3) As to the assertion that the standard market price provision of this case should be applied

The provision of the standard market price in this case asserts that the plaintiff shall continuously apply to the transfer margin of the commercial building in this case, because the standard market price is set in the case where the standard market price is applied to the transfer margin of the land or building, it can be applied to the case where the successful bid price in the voluntary auction is lower than the price based on the standard market price of the land or building under Article 99 (1) 1 of the Income Tax Act. As for the commercial building in this case, as the actual transfer price is confirmed as above, the transfer price pursuant to the provision of the calculation of the transfer margin in this case shall be the actual transaction price, the acquisition price shall be the conversion price, and the transfer margin shall be calculated based on the conversion price, and according to the facts cited above and evidence, there is no room to apply the provision of the standard market price in this case as the successful auction price (00 won and evidence No. 7) is lower than the standard market price at the time of voluntary auction.

Therefore, insofar as the provision on the standard market price of this case cannot be applied to the transfer of the commercial building of this case, even if the judgment of the court of first instance did not clearly determine the plaintiff's assertion on this part, it does not constitute an error of law that affected the conclusion of the judgment. Ultimately, the plaintiff's assertion on this part based on the different premise above is not justified without any further discussion (the case of question question question or decision of the Tax Tribunal, etc. submitted by the plaintiff to the court of this case is merely a case where the facts and relation of this case are different or the Income Tax Act applied to the disposition of this case is not applicable, and therefore, it cannot be deemed that the plaintiff'

3. Conclusion

Thus, the plaintiff's appeal is dismissed as it is without merit.