Suwon District Court 201Gudan790 ( December 10, 2012)

The early 2010 middle 2152

Since the value under the exchange contract cannot be recognized as real acquisition value, the disposition to apply the conversion value is legitimate.

Comprehensively taking into account the fact that the market price appraisal of real estate at the time of concluding an exchange contract has not been undergone at all, that both parties stated in the exchange contract at the time of the investigation that the value of the real estate was voluntarily set at their own discretion, and that there is a big difference between the value of the real estate at the time of exchange contract

2013Nu1371 Revocation of disposition of imposing capital gains tax

KimA

Head of Namyang District Tax Office

Suwon District Court Decision 2011Gudan790 Decided December 10, 2012

June 19, 2013

July 10, 2013

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 000 on March 4, 2010 against the Plaintiff on March 4, 2010 shall be revoked.

1. Quotation of judgment of the first instance;

The reasons why this Court should explain, and except for addition to the following paragraphs, the decision on the argument that the plaintiff emphasizes in particular in this Court is being presented in the judgment of the court of first instance, and thus, it is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion

The plaintiff, ①, the 00 won, and the exchange real estate were evaluated as 00 won and 000 won, and thereafter, the actual acquisition value of the real estate in this case was confirmed, and the disposition in this case applying the conversion value in other preceding systems is illegal, and when the transfer difference is calculated, the acquisition value should be calculated according to the same standard. The defendant calculated the conversion price in this case as the conversion price, and the transfer price in this case is calculated based on different standards as actual transaction price. The disposition in this case is unlawful, and third, the plaintiff did not obtain the transfer margin at all with the exchange contract of the real estate in this case and the unregistered pre-sale, and the disposition in this case is unlawful against the principle of no taxation without law and no taxation without law.

B. Determination

(1) As to the Plaintiff’s assertion

앞서 이 판결이 인용한 제1심 판결의 이유에서 채택한 증거와 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정， 즉 ㉠ 원고는 이 사건 교환계약을 체결하면서 이 사건 부동산과 교환부동산에 대한 시가감정을 전혀 거치지 아니한 점，㉡ 이 사건 교환 계약의 실질적인 당사자인 백BB과 김CC은 중부지방국세청에서 조사받으면서 이 사건 교환계약서에 쌍방 당사자가 임의로 책정한 가액을 기재하였다고 진술하였던 점， ㉢ 제1심 법원의 감정 결과에 의하면 이 사건 교환계약 당시의 이 사건 부동산의 가치 가 000원으로서 이 사건 교환계약서에 기재되어 있는 000원과 큰 차이가 있는 점 등을 종합하면， 이 사건 교환계약서에 기재되어 있는 이 사건 부동산의 가액인 000원을 이 사건 부동산의 실지취득가액으로 볼 수 없다고 할 것이다.

Therefore, as long as the real acquisition value of the real estate of this case is not recognized, and the conversion value under the provisions of the Income Tax Act is calculated as the acquisition value of the real estate of this case, the disposition of this case is deemed lawful, and the plaintiff's above assertion

(2) As to the Plaintiff’s assertion

Article 100 (1) of the Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009, hereinafter the same shall apply) provides that "in calculating the gains from the transfer, the transfer value shall be based on the actual transaction value (including the value provided for in Article 96 (3) and the value of transaction example, appraisal, appraisal value, etc. applied in accordance with Article 114 (7)) when the transfer value is based on the actual transaction value (including the value provided for in Article 97 (7) and the value of transaction example, appraisal, appraisal, conversion value, etc. provided for in Article 114 (7) where the value of transaction example, appraisal value, and conversion value is applied), and the acquisition value shall be based on the standard market price if the transfer value is based on the standard market price. Accordingly, the conversion value applied under Article 114 (7) of the Income Tax Act is clearly included in the scope of the actual transaction value

Therefore, since the actual transfer value of the real estate of this case is recognized as the transfer value, and the actual acquisition value cannot be recognized as the acquisition value of the real estate of this case, it cannot be said that the disposition of this case violates the same standard principles, and the plaintiff's above assertion is without merit.

(3) As to the Plaintiff’s assertion

The Plaintiff’s assertion that the Plaintiff did not obtain gains from transfer on the basis of the real estate exchange contract and the unregistered pre-sale transaction agreement is merely an assertion of the result of calculating gains from transfer in a voluntary independent manner without any basis under the income tax law, and such circumstance alone cannot be deemed as contrary to the principle of substantial tax law and the principle of excessive prohibition, and the Plaintiff’s assertion also is without merit.

3. Conclusion

Thus, the plaintiff's appeal is dismissed as it is without merit.