조세심판원 조세심판 | 2019-01-28 | 조심2018중3864 | 양도
Appellate Court 2018J 3864 ( October 28, 2019)
In light of the fact that the claimant's transfer details of the right to purchase the issue claimed by the disposition agency are not verified by objective evidence, such as account transaction statement, etc., the disposition agency judged that it is reasonable to correct the tax base and tax amount according to the result of re-examination of whether the claimant transferred the right to purchase the issue to o and received the actual payment of ○○ won.
Article 96 of the Income Tax Act
The disposition of imposition of capital gains tax for the year 2009 imposed on the claimant on January 23, 2018 by the head of the OO or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the
1. Summary of disposition;
A. On December 22, 2009, the claimant transferred the right to sell the land in the O housing site development zone (hereinafter “the right to sell the land in dispute”) to the OOO on December 22, 2009, and reported the transfer value of the right to sell the land as the OO's won on January 21, 2010 with the transfer value of the right to sell the land as the O's won.
B. The Commissioner of the National Tax Service (hereinafter “OOO Commissioner”) notified the result of the tax investigation on OO, the head of the OO association, that the claimant transferred the right to sell the issue to the OO (the spouse of the OO) to the OO (the spouse of the OO) who is the member of the OO association. The OOO Commissioner notified the OOO on January 23, 2018 by deeming that the claimant had underreported the transfer income tax, and the OO Commissioner notified the 2009 applicant of the correction
C. On April 13, 2018, the claimant raised an appeal on August 27, 2018.
2. Opinions of the claimant and disposition agency;
A. The claimant's assertion
The claimant did not know at all about the living countermeasure site. On November 2005, prior to the expropriation of 1,041 square meters (hereinafter referred to as "previous land"), he/she purchased and sold the previous land on the condition that he/she did not transfer the registration because he/she could not sell the land for three years after the date of the public notice of the business, and even if he/she purchased and sold the previous land on the condition that he/she would assist the expropriation of the land.
In this fact, on November 18, 2015, 2015, OO was created as a collateral by OOO as a debtor on November 21, 2005, when OO was designated as a debtor, it can be confirmed that OO was established as a collateral for OO, but the claimant is aware of it at all, and the claimant entered into a sales contract for the previous land with OOO and remitted OO to OO among purchase price OO members, and the claimant remitted OO to OO as well as OO on the condition that OO was required to receive the compensation for agricultural products.
The claimant is not aware of the contents of the right to sell the issue, and he has affixed his seal on the sales contract (the purchaser's OO, the purchase price OO, the sale price hereinafter referred to as "market 1") at the request of the OOO, and the transfer income tax was not reported. The real estate sales contract (the purchaser's OO, the purchase price OOO, the sale price hereinafter referred to as "market2 contract") presented by the disposition agency is not the claimant's permanent domicile and there is no fact that the contract has been prepared.
In addition, the key B contract presented by the disposition agency has no contract date, the applicant's resident registration number is mistakenly stated, the stamp is different, the OO is not aware of the claimant's temporary payment, and the applicant has not received a transfer of the purchase price.
(b) Opinions of disposition agencies;
The questions and answers of the head of the OOO association and the head of the OOO stated that they were acquired from the claimant in terms of the acquisition and transfer, and the OO transferred the claimant for the purchase and sale of the land for countermeasures against the OO district by acting on behalf of the purchaser for the purchase and sale of the land for countermeasures against the OO district, the OO prepared documents that actively cooperate with the purchaser's OO and that the buyer is responsible for all documents and all kinds of work until after the transfer of the name, and the Claimant appears to have been entrusted to the O for the transfer of the land for countermeasures against the OO by entrusting the O with all documents such as a certificate of personal seal impression, etc.;
It is difficult to understand that at the time of the investigation into the transfer income tax, the claimant, at the time of the investigation, transferred the price of the purchase-price to the OO on September 14, 2007, which is similar to the time when the OO made the above agreement between the OO and the agent OO on September 18, 2007, that at the time of the entry into the membership list, the OO deposited the accounts without the deposit of the purchase-price to the OOO on September 18, 2007, and that at the time of the claimant's entry into the membership list, the market price at the time of the registration in the membership list is the minimum amount of the purchase price of the OOO and the agent's transfer to the OO without receiving any payment from the OO.
The claimant argues that he/she was unable to fully recognize the land for livelihood countermeasures and affixed the written contract at the request of the OO, but the claimant may be deemed to have clearly reflected that he/she traded the land for livelihood countermeasures through the OOO at the time of the investigation, the claimant's assertion that he/she did not know the details of the transaction at all at the time of the investigation that he/she did not receive the payment rate, is not persuasive, and most of the cases where he/she paid or used the price only in cash due to the characteristics of the land for sale right speculative transactions are requested to submit the relevant documents, but all of the related documents are not submitted;
The claimant's assertion is difficult to believe that the claimant is unable to submit objective and direct evidence to support this, while the claimant's actual transferor of the right to purchase the issue is objectively verifiable by various relevant documents, etc., the claimant's entrustment of the disposal of the land for countermeasures against O's living to OO to OO to know or to have accepted the sale contract for the right to purchase the issue, and the claimant's under-reported return of the capital gains tax by the method of preparing a sales contract stating the sale price differently from the fact through OO, etc., is justified in deeming the OO as the actual transfer price and imposing the capital gains tax.
3. Hearing and determination
A. Key issue
propriety of the disposition imposed by deeming the transfer value of the right to sell issues as an OO
(b) Relevant Acts;
(1) Framework Act on National Taxes
Article 14 (Real Taxation) (1) When the ownership of income, profit, property, act or transaction subject to taxation is merely nominal, and there is another person to whom it actually belongs, tax-related Acts shall apply to such person to whom it actually belongs as a taxpayer.
(2) The provisions pertaining to the calculation of tax base in tax-related Acts shall apply to the actual income, profit, property, act or transaction, regardless of its title or form.
(3) Where it is recognized that benefits provided for in this Act or other tax-related Acts are obtained unfairly by means of indirect means via a third party or through two or more acts or transactions, this Act or other tax-related Acts shall apply, deeming that the relevant party has made a direct transaction or has engaged in a single act or transaction consecutively in accordance with the economic substance thereof.
(2) Income Tax Act
Article 88 The definitions of terms used in this Chapter shall be as follows:
5. The term "actual transaction price" means the price actually traded by a transferor and a transferee at the time of the transfer or acquisition of assets, which is money in a relationship of compensation for the transfer or acquisition of relevant assets and other assets;
Article 94 (Scope of Transfer Income) ① Transfer income shall be the following income generated in the relevant taxable period:
1. Income generated from transfer of land (referring to any land category subject to registration in the cadastral register under the Act on the Establishment, Management, etc. of Spatial Data) or a building (including any facilities and structures attached to a building);
Article 96 (Value of Transfer) (1) The transfer value of assets under each subparagraph of Article 94 (1) shall be based on the actual transaction value between the transferor and transferee at the time of transfer of the assets.
C. Facts and determination
(1) According to the instant taxation-related data, the following facts appear.
(A) According to the National Tax Service’s domestic portal system, the agency has reported the transfer income tax on the ground that the claimant transferred the right to purchase the issues acquired on November 5, 2009 to OO to OO on December 22, 2009, considering the transfer value of the right to purchase the issues as OO, the agency imposed the transfer income tax on the claimant as the transfer value of the right to purchase the issues as OO, and the claimant’s business history is as bit.
【Project Records of Appellants
(B) The agency has investigated that an OO on behalf of the claimant has transferred the right of sale to the OO, and submitted the purchase price, agreement, and financial transaction statement of the OO's written response and written response submitted by the OOO as of January 29, 2007. According to the agreement, the agency entered into an agreement with the OO on behalf of the claimant and one other than the seller, and entered into an agreement with the OO on September 18, 2007 to take charge of all documents and daily processing until the title transfer. According to the O's financial transaction statement, the claimant transferred the compensation OO's received from the OO on January 8, 2007 to the OO on behalf of the buyer, and the OO transferred the OO's won to the OO on January 29, 207.
(2) The claimant, at the request of the OOO, affixed the seal to the contract, but argued that the disposition authority did not prepare the contract or have not received the purchase price. The evidence submitted the contract related to the right to purchase and sale, appraisal, and copy of the register, etc. The purchase price of the contract entered into between the claimant and OOO on December 222, 2009 appears as OO. On the other hand, according to the contract, the seller, the buyer is OO, the buyer is an OO, the resident number of the claimant is not entered, and the contract is omitted, and the date of preparation is omitted. According to the copy of the previous land register, the mortgage (the maximum bond amount) established by OOOO on November 18, 2005 and the mortgage claim amount established by OOO on November 21, 2005 and the mortgage claim amount established by the debtor applicant is terminated.
(3) In full view of the above facts and relevant laws, the disposition agency imposed capital gains tax on the applicant by deeming the actual transfer value of the key purchase right as an OOO. However, on December 22, 2009, the sales price of the contract entered into by the claimant and OOO appears as OO won, the claimant asserts that the contract was entered into or the disposition agency did not have any counter-proof; the contract was entered, there is no counter-proof; the contract was entered, there is no contract date; the applicant's resident registration number was entered; the details transferred from OO, an OO or an agent, the transfer value of the key purchase right claimed by the disposition agency, were not verified by objective evidence, such as account transaction statement, and thus, it is reasonable that the disposition agency rectifys the tax base and tax amount based on the results.
This case shall be decided in accordance with Article 81 and Article 65 (1) 3 of the Framework Act on National Taxes because the petition for the trial results is well-grounded.