상가 분양권의 전 소유자가 당초 허위로 확인한 금액을 취득가액으로 하여 산정한 부과처분은 위법함[국패]
Seocho 2014west 4434 ( December 03, 2014)
The imposition of tax calculated by the pre-owner of the commercial building on the amount initially confirmed as false acquisition value shall be illegal.
In light of various circumstances, the premium that occurred when the former owner transfers the right to sell in lots is more than the acquisition value calculated by the tax authority when calculating the gains on transfer, and at least the premium that is divided by joint investors, licensed real estate agents, etc., and thus, the imposition of tax calculated by the former owner as the acquisition value based on the amount initially confirmed as false is unlawful.
Article 94 of the Income Tax Act
2015Gudan2362 Revocation of Disposition of Imposing capital gains tax
YAA
The head of Yangcheon Tax Office
October 23, 2015
November 24, 2015
1. On February 1, 2014, the Defendant revoked the imposition of an OO of the capital gains tax for the year 2003, imposed on the Plaintiff.
2. The costs of the lawsuit are assessed against the defendant.
Cheong-gu Office
The same shall apply to the order.
1. Details of the disposition;
A. On March 19, 2003, the Plaintiff acquired the sales right to Seoul OOO (hereinafter the instant sales right) from the dueB on April 17, 2003, and reported the transfer income tax by using the acquisition value as the OO won and the transfer value as the OO won.
B. On Oct. 1, 2007, the Defendant conducted an investigation of capital gains tax on the Plaintiff, and calculated the transfer value of the Plaintiff’s sales right as the OO, and determined the acquisition value as the aggregate of the receipt of the OO of the amount as of Mar. 17, 2003 and the receipt of the OO of the amount as of Mar. 19, 2003 and the receipt of the OO of the amount as of Mar. 19, 2007, the Defendant notified the Plaintiff of the correction and notification of the KRW O of capital gains tax for the year 2003, and notified the head of the Guro Tax Office having jurisdiction over the dueB’s domicile.
C. Accordingly, the former director of the Guro Tax Office conducted an investigation of capital gains tax on JungB, and confirmed that the Plaintiff’s seal was affixed on the above amount’s receipt rather than the fixed BB’s seal, and considered the transfer value of the sales right of this case by JungB as the OO (the grounds that the Plaintiff obtained the sales right of this case from the former director of the tax office prior to the review of the legality that the Plaintiff submitted to the former director of the tax office and stated that the Plaintiff was sold upon receiving the premium from the OOO) and notified the Defendant thereof.
D. On February 10, 2014, the Defendant issued an additional correction and notification of the acquisition value of the Plaintiff’s sales right (including additional OOB) and the transfer value as OOB as of December 1, 2007 to the Plaintiff on December 1, 2007.
[Ground of recognition] Facts without dispute, Gap 1 through 3, Eul 1 (including virtual number), the purport of the whole pleadings
2. Whether the disposition is lawful;
A. The plaintiff's assertion
The Plaintiff’s acquisition value (transfer value of businessB) is not an OO personnel but an OO personnel as initially investigated by the Defendant. The Plaintiff’s seal affixed on the receipt of the amount OO personnel, which is not a B’s seal, is merely a simple number of licensed real estate agents, a broker for transaction, at the time.
B. Determination
The Defendant’s calculation of the Plaintiff’s acquisition value as OO won in rendering the instant disposition in full view of the following circumstances acknowledged by comprehensively taking account of the descriptions of evidence Nos. 12, 13, and 14 as well as the overall purport of the pleadings at the witness JeongB’s testimony should be revoked as unlawful.
1) At the time of transferring the instant right to sell, JeongB acquired the OO's premium and paid the OOO's premium to it with it. The request for a review of legality prior to its taxation was not made by itself but rather made by it on behalf of the tax accountant, and it testified that it was not well aware of its content.
2) On March 31, 2008, under the evidence No. 14, the testimony was not consistent because the real estate agent and the Korean real estate agent agent who arranged the transaction of the sales right of this case, together with the two parties, made investments in the sales right of this case and divided the premium. However, according to the evidence No. 14, the KoreaCC paid OB to the NA on March 31, 2008, and JungB paid OB to the NA on the same day. This is supported by the fact that the Plaintiff participated in the investment of the sales right of this case and divided the premium.
3) Ultimately, the premium, which occurred during the transfer of EB to the Plaintiff of the instant right to sell, is at least the amount calculated by adding the sum among the OO and the couple of the OO and the Korea-CC, owned by SOD with the OOD.
4) Therefore, the Defendant’s calculation of the Plaintiff’s acquisition value of the sales right of the instant case as the OB’s sales right (transfer value of the PartyB) was unlawful on the grounds that the Plaintiff acquired the sales right of the instant case from OB to OB prior to the taxation of the former Director of the Guro Tax Office, and entered the fact that OB acquired the sales right of the instant case after receiving OO’s OB from OB.
3. Conclusion
Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.