National High Court 199J 1816 ( November 20, 1999)

Transfer

Dismissal

The special agreement on the establishment of collateral security on the register is legitimate for a disposition imposed on the standard market price because it is impossible to prove the actual acquisition value with financial data without showing the contract.

Article 23 of the Income Tax Act / Examination and determination of transfer income amount under Article 170 of the Enforcement Decree of the Income Tax Act

I dismiss the appeal.

1. Summary of disposition;

The claimant acquired a lot of 180.9 square meters and a building of 261.54 square meters in a building located in the OOOO in Gyeonggi-do, OOOOOO, and transferred it by the court auction on August 20, 1990.

In this regard, the disposition agency calculated the transfer margin of the real estate at the market price corresponding to the transfer margin, and decided and notified the applicant of the transfer income tax of 23,228,130 won belonging to the year 193.

On May 24, 1999, the claimant appealed against this and filed an appeal for adjudication on this case on August 24, 199.

2. Opinions of the applicant and the Commissioner of the National Tax Service;

(a) Request;

The notification prior to the determination of the transfer of the real estate at issue was filed with the documents of the actual transaction value, and the transfer value of the real estate at issue is confirmed by the sales contract and the decision of permission of the successful bid at the time of acquisition, so the acquisition value should be determined based on the actual transaction value, so it is unreasonable to determine it as the standard market price.

(b) Opinions of the Commissioner of the National Tax Service;

The transfer value of the real estate at issue is confirmed by the court's successful bid price, but the acquisition value is made between the parties to the transaction, no financial data is presented, and there is no special agreement on collateral security, so it is not confirmed that the actual transaction price is not confirmed by the standard market price.

3. Hearing and determination

A. Key issue

It is true whether the actual transaction price of the real estate at issue can be confirmed by the transaction evidence.

(b) Related statutes;

Article 23 (4) of the Income Tax Act at the time of transfer of the key real estate provides that "The transfer value shall be the amount falling under any of the following subparagraphs," and subparagraph 1 of Article 23 provides that "the standard market price at the time of the transfer of the assets in case of the assets under the provisions of Article 23 (1) 1, 2 and 5: Provided, That in the case prescribed by the Presidential Decree,

Article 45 (1) of the same Act provides that "Necessary expenses to be deducted from the transfer value in calculating gains on transfer of residents shall be prescribed in the following subparagraphs, and the acquisition value under subparagraph 1 (a) shall be the standard market value at the time of acquisition of the assets in case of assets under Article 23 (1) 1, 2 and 5: Provided, That in cases prescribed by Presidential Decree, it shall be based on the actual transaction value required for the acquisition of the assets:

Article 170 (4) of the Enforcement Decree of the same Act provides that "The cases prescribed by Presidential Decree" in the proviso to Article 23 (4) 1 of the Act and in the proviso to Article 45 (1) 1 (a) of the Act means cases falling under any of the following subparagraphs, and subparagraph 3 of the same Article provides that "The cases where the actual transaction price at the time of acquisition and transfer by documentary evidence submitted by the transferor at the time of report pursuant to the provisions of Article 95 or 100 of the Act can be confirmed."

Article 166 (4) 3 of the Enforcement Decree of the Income Tax Act amended on December 30, 1995 provides that "Where a transferor prepares evidentiary documents and reports the actual transaction price at the time of transfer or the time of acquisition to the head of the tax office having jurisdiction over the place of tax payment by submitting them within the period of determination of the tax base and amount of capital gains tax," and Article 8 (2) of the Addenda to the Enforcement Decree of the same Act provides that "the amended provisions of Articles 153 (4), 155 (1) and 164 (11) and 166 of the Enforcement Decree of the same Act shall apply from the date of determination of capital gains after the enforcement of this Decree."

C. Facts and determination

The transfer value of the key real estate is KRW 171 million, which is the court auction price, and the claimant's request for a review of the legality of taxation with evidence on the actual transaction price is not a dispute as to whether the actual transaction price is reported by keeping the evidence within the date of the decision of the transfer income tax stipulated in Article 166 of the Enforcement Decree of the Income Tax Act, and it is examined whether the acquisition value of the key real

First, examining the sales contract submitted by the claimant as evidence of the acquisition value of the real estate in question, the sales contract is prepared between the claimant and the OOOO who is the seller without brokerage on April 24, 1990, and the transaction of the real estate in question is entered on May 31, 1990 and 200,000,000 won. However, even if the acquisition date of the real estate in question (the acquisition date of August 20, 1990) is transferred by the OO Mutual Savings and Finance Company (OOOO as the debtor, the maximum debt amount of 105,00,000,000 won is confirmed on the register of the real estate in question, there is no special provision on this.

In this regard, the claimant asserts that the OOO had arranged for sale and purchase between the claimant and the OO, and that the separate broker did not need to do so, and that this transaction was paid in cash and check, so it cannot present financial data, and received receipts after payment. In addition, the claimant settled the balance after receiving a loan from the OO under the name of the high-speed line, 190.7.19 (State) OO, a high-speed line, and the original contract was prepared on April 24, 1990 and submitted a confirmation document of OO and OO by asserting that the fact of creation of collateral security was omitted due to the lack of balance at the time of the preparation of the contract.

In this regard, since a copy of the sales contract without a broker is submitted in the sale of the key real estate, and there is no presentation of receipts, etc. related to payment, the sales contract cannot be ruled out by the possibility that it will be prepared differently from the facts under the understanding between the parties after the fact, and this cannot be viewed as having satisfied the admissibility of evidence, and it is difficult to recognize its credibility unless it is confirmed by specific and objective evidence such as financial data.

In addition, since there is no special agreement on the establishment of a collateral security on the register, there is only a presentation of evidence, such as objective and specific loan-related data, and there is no presentation of evidence, the confirmation can be prepared as requested by the other party unless there is an influence on the mutual interest between the parties concerned, so it is difficult to accept the contents of the confirmation that the collateral security was inevitably created before ownership is transferred for the settlement of the balance.

In light of the above facts and laws, since the acquisition value of the real estate at issue cannot be confirmed by transaction verification, etc., it is judged that there was no error in the disposition imposing capital gains tax by denying the actual transaction value asserted by the claimant for the transfer of the real estate at issue, calculating the capital gains tax as the standard market price and calculating

D. Accordingly, this case’s petition is without merit, and it is so decided as per Disposition in accordance with Articles 81 and 65(1)2 of the Framework Act on National Taxes.