Gwangju High Court ( Jeonju) 2013Nu524 (2013.09)

(Partial Failure)Determination of the price assessed retroactively in appraisal of the acquisition value of land without an individual land price as an actual acquisition value;

If the market price is confirmed by the retroactive appraisal of the land acquired by inheritance, the acquisition value of the land in this case shall be calculated based on the objective exchange value based on the transaction example of similar property, such as the result of the first instance court’s request for appraisal, and the appraisal value at that time can be calculated as the market price of the land in this case.

2013Du21571 Revocation of Disposition of Imposing capital gains tax

B. Incidental Appellant

NewA

-Supplementary Appellee

Head of the District Tax Office

Gwangju High Court ( Jeonju) Decision 2013Nu524 Decided September 9, 2013

February 27, 2014

The part against the defendant shall be reversed, and the judgment of the first instance on this part shall be revoked, and this part of the lawsuit shall be dismissed.

The plaintiff's incidental appeal is dismissed.

One-fifth of the total litigation costs shall be borne by the plaintiff, respectively.

1. The defendant's grounds of appeal are examined.

When an administrative disposition is revoked, such disposition shall lose its validity, and no longer exists, and a revocation lawsuit against a non-existent administrative disposition is unlawful as there is no benefit of lawsuit (see, e.g., Supreme Court Decision 2012Du18202, Dec. 13, 2012).

According to the records, around November 5, 2013, after the filing of the instant appeal, the Defendant can be aware of the fact that he ex officio revoked the disposition of imposition against the Defendant regarding the part against the Defendant among the judgment below. As such, the part of the instant lawsuit, which was revoked as above, was seeking revocation of the disposition that was not extinguished, and thus becomes illegal. The allegation in the grounds of appeal is with merit.

2. The plaintiff's grounds of incidental appeal are examined.

In applying the main sentence of Article 97 (1) 1 (a) of the former Income Tax Act (amended by Act No. 10408, Dec. 27, 2010); Article 97 (1) 1 (a) of the former Income Tax Act provides that "the actual transaction price for the acquisition of assets under each subparagraph of Article 94 (1) shall be one of the necessary expenses to be deducted from the transfer value when calculating gains from transfer of a resident; and Article 163 (9) of the Enforcement Decree of the Income Tax Act that provides for necessary matters concerning the scope of "actual transaction price required for the acquisition upon delegation under paragraph (5) of the same Article shall be excluded) of the same Article, in applying the main sentence of Article 97 (1) 1 (a) of the Act to the assets acquired by inheritance or donation (excluding donations under Articles 33 through 42 of the Inheritance Tax and Gift Tax Act), the court below determined that the amount of tax assessed as the actual transaction price at the time of the commencement of inheritance or donation shall be deemed unlawful for reasons that it exceeds the market price at the first instance court.

Examining the reasoning of the judgment below in light of relevant provisions, legal principles, and records, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal by the military unit, there were no errors in the misapprehension of legal principles as to the market price, which is viewed as acquisition value in the calculation

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant is reversed, and since the part of the reversal is sufficient for the Supreme Court to directly judge, the judgment of the court of first instance as to this part is revoked, and this part of the lawsuit is dismissed, the plaintiff's incidental appeal is dismissed, and 1/5 of the total costs of the lawsuit is to be borne by the plaintiff and the remainder is to be borne by the defendant, as per the Disposition by