양도가액을 잘못 인정한 하자가 있으나 객관적으로 명백한 것이라고 인정할 수 없어 무효에 해당하지 아니함[국패]
Major District Court 201Guhap4725 ( November 08, 2012)
Although there is a defect that has mistakenly recognized the transfer value, it does not constitute invalid because it cannot be objectively recognized as objectively apparent.
In light of the fact that there is a defect in recognizing the amount reported by the transferee of land as the actual transaction price and using it as the transfer price by the transferor, there is no data for payment of the purchase price, etc., but it is insufficient to recognize that there is a defect in recognizing the transfer price as a material breach
Article 96 of the Income Tax Act
2013Nu1531 Revocation of disposition of imposing capital gains tax
EAA and 3
BB Director of the Tax Office
(1) Supreme Court Decision 201Mo4725 Decided November 8, 2012
June 13, 2013
July 11, 2013
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance court is revoked. On June 3, 2011, the defendant confirmed that the imposition of the capital gains tax of the year 2002 against the plaintiff is invalid.
1. Details of the disposition;
The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part of the court's explanation is accepted by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.
2. Whether the disposition is invalidated;
A. It is insufficient to say that there is an illegal cause for an administrative disposition so as to be null and void as a matter of course. It is necessary to objectively clarify the defect as a serious violation of the important part of the law. In determining whether the defect is increased and obvious, the purpose, meaning, function, etc. of the law should be examined from a teleological perspective and, at the same time, reasonable consideration of the specificity of the specific case itself (see, e.g., Supreme Court Decision 2005Du14363, Jun. 30, 2006). In addition, in an administrative litigation seeking nullification of an administrative disposition, the plaintiff is liable to assert and prove the reason for invalidity of the administrative disposition (see, e.g., Supreme Court Decision 91Nu6030, Mar. 10, 1992; Supreme Court Decision 2009Du3460, May 13, 2010).
B. Since the Plaintiff acquired the ownership of the instant land on May 28, 2002 and on August 23, 2002, since there is no dispute over the transfer of the instant land to the largestB, the transfer income tax shall be calculated by the actual transaction price between the transferor and the transferee at the time of transfer pursuant to Article 94(1)1 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005) and Article 96(1)4 of the former Income Tax Act as it constitutes a case where the instant land is transferred within one year after its acquisition.
C. According to the evidence No. 8 evidence No. 8, the acquisition value of the instant land was transferred to the Plaintiff at around 2008 and reported to the Plaintiff as an OO. The Defendant: (a) notified the Plaintiff of the submission of evidence or the payment of revised report; (b) made the instant disposition based on the acquisition value reported by the Plaintiff and the largestB; and (c) made a correction or notification based on the evidence No. 1 and No. 8; (d) based on the records No. 1 and No. 8 as to the actual transaction value between the Plaintiff and the Plaintiff, the actual transaction value can be recognized as the existence of OO; and (e) as seen contrary thereto, the evidence No. 3 (PB submission sales contract) cannot be deemed as evidence to acknowledge the authenticity of the Plaintiff’s name; and (e) the evidence No. 8 merely stated in the above evidence No. 1 and No. 1 and No. 5 were objectively insufficient to recognize the transfer value of the instant real estate, and thus, it is objectively insufficient to recognize that the above portion was a lack of acquisition value.
D. Therefore, the Plaintiff’s assertion that the instant disposition is invalid is without merit.
3.In conclusion
Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.