2. The part of the Appointor’s claim against the Plaintiff (Appointed Party) is dismissed.

3. The costs of lawsuit shall be borne by the plaintiff (appointed party).

A. On May 10, 2006, the SelectionB (before the opening of July 10, 2013: hereinafter referred to as “B”) acquired the instant house from the EEED, which is held office as the representative director by the Plaintiff (hereinafter referred to as the “Appointed Party”) and transferred the instant house to the EEED corporation, which is held office as the representative director by the Plaintiff (hereinafter referred to as the “Plaintiff”), for sale and purchase (hereinafter referred to as the “instant transfer”). < Amended by Presidential Decree No. 17815, Nov. 20, 2015; Presidential Decree No. 27800, Nov. 20, 2015; Presidential Decree No. 23100,000,00 won (hereinafter referred to as “instant transfer”).

B. On May 31, 2016, thisB filed a final return on transfer income tax with the purport that there is no transfer margin of KRW 310,000,000, acquisition value of KRW 300,000,000, necessary expenses, and KRW 9,00,00,000, in relation to the transfer of this case to the Defendant.

C. On July 5, 2016, the Defendant notified thisB of taxation that the transfer value of this case shall be KRW 310,00,000, acquisition value of KRW 200,000,000, and necessary expenses shall be KRW 5,437,80 (acquisition tax and registration tax amount) on August 1, 2016, the Defendant will impose KRW 15,580,373 of the transfer income tax for the year 2015.

D.B requested the Defendant to pre-assessment review on July 22, 2016, but was non-adopted on September 8, 2016.

E. On October 1, 2016, the Defendant corrected the transfer value, acquisition value, and necessary expenses as set forth in the foregoing sub-paragraph (c) to the BB, and notified the increase in capital gains tax of KRW 15,509,110 (including additional tax of KRW 2,49,859 and additional tax of KRW 809,954 for failure to report) for the year 2015 (hereinafter “instant disposition”).1)

F.B filed a request for review with the Board of Audit and Inspection on December 15, 2016, but the Board of Audit and Inspection dismissed the request for review on January 24, 2018.

Facts that there is no dispute over recognition, Gap evidence 1, Eul evidence 1 through 6, 9 through 14, and the purport of the whole pleadings.

2. Summary of the plaintiff's assertion

B At the time of the acquisition of the instant house, the Plaintiff took over the obligation to repay the lease deposit amounting to KRW 240,00,000 (hereinafter referred to as “deposit”) to the lessee, and paid KRW 60,00,000,000 to the lessee. Therefore, the acquisition value of the instant house by the BB (hereinafter referred to as “acquisition value of the instant house”) is KRW 300,000,000 in total. Unlike this, the instant disposition was unlawful.

3. Related statutes;

It is as shown in the attached Table related statutes.

4. Determination ex officio: Whether the part of the instant lawsuit claimed by the Plaintiff and the Appointor is legitimate

The above part of the lawsuit is unlawful for the following reasons.

(a) the period for filing the suit; and

1) Inasmuch as a third party, who is not the other party to an administrative disposition, becomes aware of an administrative disposition, a revocation suit shall be filed within a peremptory period of 90 days from the date on which he/she becomes aware of such disposition, and in such cases, whether a third party has justifiable grounds for failing to observe the filing period is not an issue (see, e.g., Supreme Court Decision 2002Du7890, Dec. 27, 2002).

2) The other party to the instant disposition is B. The Plaintiff and the Appointed (hereinafter referred to as “A” in this paragraph) constitutes a third party, not the other party to the instant disposition, and if A becomes aware of the instant disposition in certain circumstances, it shall file a suit for revocation within the peremptory period of 90 days thereafter. However, this A stated that the instant disposition was known at the date of the first pleading, and the date of the instant suit was April 18, 2018, which was 90 days after the lapse of 90 days thereafter, and thus, this part of the suit was brought subsequent to the filing period of the suit.

B. Violation of the necessary transfer principle

1) Article 18(1) of the Administrative Litigation Act provides that "a revocation lawsuit may be instituted without going through an administrative appeal against a disposition in question under the provisions of Acts and subordinate statutes: Provided, That this shall not apply where any other Act provides that a revocation lawsuit may not be instituted without going through an adjudication on an administrative appeal against the disposition in question." Meanwhile, Article 55(1) main sentence of the Framework Act on National Taxes provides that "a person whose rights or interests are infringed due to an illegal or unreasonable disposition in accordance with this Act or other tax-related Acts or a failure to receive a necessary disposition, may request the cancellation or modification of such disposition or request a necessary disposition pursuant to the provisions of this Chapter," while Article 56(2) of the same Act provides that "an administrative litigation against an illegal disposition in question as provided for in Article 55 may not be instituted without a request for examination or adjudgment under this Act and a decision thereon shall not be brought without going through an adjudication on an administrative appeal against the disposition in question."

2) The instant disposition is based on the Income Tax Act, and thus constitutes “disposition under the tax law” stipulated by the main sentence of Article 5(1) of the Framework Act on National Taxes. However, thisA filed the instant lawsuit without going through the pre-trial procedure (as seen above, only this B had gone through the pre-trial procedure). Therefore, this part of the lawsuit is contrary to the necessary principle of pre-trial regarding tax administrative litigation.

C. Lack of standing to sue

1) A third party, who is not the other party to an administrative disposition, is recognized as standing to sue only when the interests protected by law are infringed by the pertinent administrative disposition. The term “legal interests” refers to cases where there are individual, direct and specific interests protected by the relevant administrative disposition’s relevant laws and regulations and relevant laws and regulations (see, e.g., Supreme Court Decision 2003Du2175, Aug. 16, 2004).

2) Although thisA asserts that a taxpayer is scheduled to pay capital gains tax pursuant to the instant disposition on behalf of this BB, such circumstance alone is not sufficient to deem that thisA has a direct infringement of the interests protected by law due to the said disposition. ThisA does not have the right to sue seeking the revocation of the said disposition.

5. Determination on the BB of the Plaintiff’s claim

A. Key issue

The key issue of this part is whether the acquisition value of the instant house is KRW 200,000,000 or not, as alleged by the Defendant, or whether it is KRW 300,000,000, as alleged by the Plaintiff.

(b) Relevant legal principles;

Generally, in a lawsuit seeking revocation of disposition imposing tax, the burden of proving the facts of taxation requirements should be borne by the imposing authority. However, even if there is no direct evidence as to the facts of taxation requirements, if it is possible to presume the existence of the fact of taxation based on the theory that can be reasonably explained based on the indirect facts, etc. based on the empirical rule, it should be proven. Therefore, inasmuch as indirect facts can be found in light of the empirical rule in the specific litigation process, unless the other party to the disposition imposing tax proves that the facts in question are not subject to the empirical rule or there are special circumstances that can exclude the application of such empirical rule in the pertinent case, it cannot be readily concluded that the pertinent disposition is an illegal disposition that failed to meet the taxation requirements (see, e.g., Supreme Court Decisions 2002Du6392, Nov. 13, 2002; 2006Du6383, Sept. 22, 2006).

Meanwhile, in a case where a taxpayer submitted a sales contract, etc. concerning the acquisition and transfer as documentary evidence related to the actual transaction price, barring any special circumstance such as a sales contract, etc., the tax authority shall calculate gains on transfer based on the actual transaction price under the sales contract, barring any special circumstance such as where the transaction contract, etc. was prepared differently from the actual transaction price. In such a case, the tax authority shall prove that there is such special circumstance (see, e.g., Supreme Court Decision 95Nu3183, Jun. 25, 1996). However, in a case where there is no evidence to acknowledge the authenticity of the sales contract, and there is a substantial difference between the standard market price and the ordinary transaction price claimed by the taxpayer, etc., it can be deemed that there is a special circumstance that makes it difficult to calculate gains on transfer based on the actual transaction price (see, e.g., Supreme Court Decision 96Nu5810, Jun. 27, 197).

C. Determination

1) In light of the empirical rule, it is reasonable to interpret the acquisition value of the instant house as KRW 200,000. According to the evidence evidence Nos. 2 and 3, the fact that the sales value of the instant house was stated as KRW 200,000,000 in the registry of the instant house, and that DoD transferred the instant house to B, and then reported transfer income tax to 200,000,000,000 after DoD transferred the instant house to DoB. Furthermore, the entry of the sales value on the above registry is not reasonable in light of the empirical rule as to whether DoD and B applied for the registration of ownership transfer in accordance with Article 40(1)2 and 9, and Article 41(1)9 of the former Registration of Real Estate Act (amended by Act No. 8922, Mar. 21, 2008).

2) No special circumstance is proven to preclude the application of the empirical rule.

A) As evidence submitted by the Plaintiff to prove that the acquisition value of the instant housing was KRW 300,00,000,00, the Plaintiff’s evidence was ① a certificate of confirmation (Evidence 7) prepared by D to the effect that the purchase price of the instant housing was KRW 300,000,000 on July 19, 2016; ② a copy of the sales contract (Evidence 8) prepared with the purchase price of the instant housing as of May 10, 2006 in the name of D and BB as of 300,000,000 in the purchase price of the instant housing as of May 10, 2006; ③ The Plaintiff and Nonparty ○○, who represented by B, made up between the Plaintiff and Nonparty ○, as of June 111, 2010, the instant housing lease agreement (Guarantee 240,000,000,000, Party A3 evidence); ④ No. 200,B40,000 in the name of ○.

B) However, in light of the following circumstances, it is difficult to believe that the sales price of this case is KRW 300,00,000 among the evidence mentioned in subparagraph 1, subparagraph 5, subparagraph 6, 9, 12, and 13, based on the overall purport of the pleadings, among the evidence mentioned in the above paragraph (a).

① At the pre-assessment review stage, BB asserted that “30,000,000 won was paid in cash to D at the time of the acquisition of the instant house.” At the pre-assessment review stage, D also stated that D also received 300,000,000 won in cash from B on August 1, 2016 at the pre-assessment review stage. The Defendant is not clearly explained that the cash payment of 300,000,000 won was not clearly explained at the time of the pre-assessment review decision. However, B also maintained the position that BB paid 300,000,000 won to D in cash even at the request for review submitted by the Board of Audit and Inspection after the request for review was served with the Defendant during the period of the request for review by the Board of Audit and Inspection. However, B asserted that D’s remaining obligation to return 240,000,000 won was significantly reversed as it claimed in the instant lawsuit, and argued that D’s payment was 60,00,00.

② The Plaintiff asserts that the deposit amount of the instant house was KRW 240,00,000 at the time of the acquisition of the instant house. However, thisB stated in the request for pre-assessment review and the request for examination by the Board of Audit and Inspection that the deposit amount was KRW 300,000 at the time of the acquisition of the instant house. As such, it is difficult to understand that the Plaintiff’s explanation on the amount of the deposit amount is inconsistent.

③ This BB was required to submit the original copy of a sales contract (No. 8) prepared by the Defendant in the pre-assessment review phase and the phase of the request for review by the Board of Audit and Inspection, even if the Defendant submitted the original copy of the sales contract (No. 8). The Plaintiff also failed to submit the original copy of the sales contract between BB and D until the closing of argument. Therefore, no evidence value may be given more than that there exists such copy in relation to the copy of the sales contract.

④ If B, as alleged by the Plaintiff, took over the obligation to return the deposit amounting to KRW 240,00,000 to a lessee of DD at the time of acquiring the instant house, it is natural to clearly state such fact in the sales contract. However, the copy of the said sales contract does not include any such content in the copy of the said sales contract (Evidence B). Rather, the copy of the said sales contract states that KRW 30,000,000 for the intermediate payment, KRW 80,000 for the intermediate payment, KRW 80,000 on May 10, 2006, when the contract was concluded. < Amended by Act No. 7939, May 20, 2006; Act No. 7891, May 30, 2006; Act No. 7889, May 30, 2006>

5. AD is the birth of this BB, and the time when the DD prepares the above fact-finding confirmation (Evidence 7) is after the B was asked by the Defendant to vindicate the acquisition value of the instant housing.

(6) At the second date for pleading, the Plaintiff also deemed that the said house was not a lessee at the time of acquiring the instant house.

7. There is no objective evidence that the BB paid 60,000,000 won in cash to the D, and that the BB returned 240,000,000 won to the lessee or the former ○○ at the time of the acquisition of the instant housing.

3) Sub-determination

It is reasonable to view the acquisition value of the instant house as KRW 200,000. The instant disposition issued on the same premise is lawful.

6. Conclusion

Of the instant lawsuit, the part of the claim by the Plaintiff and the Appointor A is unlawful and dismissed. The Plaintiff’s claim as to the BB is dismissed on the grounds that it is not reasonable.

1) The instant disposition was made on October 1, 2016, which was later than the scheduled date of the disposition at the time of the notice of taxation notice, and the amount of tax increased than the pre-announcement of taxation due to the increase of the penalty tax in bad faith.

2) Since documentary evidence is a method of proving the facts requiring proof by using the author’s intent expressed in the document as documentary evidence, it should first be revealed that the document was prepared on the basis of the will of the person alleged by the applicant for evidence as the applicant for evidence. The substantial probative value of the author’s intent should be determined as to how much as the original is useful as evidence of facts requiring proof after the formal admissibility of evidence is recognized. The submission of a document shall be based on the original, original, or certified copy, and only a simple copy shall be inappropriate in principle as there is no accurate guarantee, and where there is a dispute over the existence of the original and the authenticity of the establishment of the original as a substitute, and there is an objection from the other party against the original. However, if the applicant party lost the original document in good faith or damages it, or if it is presented by a third party without a duty to comply with the order to submit the original document, it shall not be deemed that the original is either impossible or unlawful as a copy of the original document, such as where it is not presented by the original document. On the other hand, it shall not be presented as an independent evidence.