early 2009west2942 ( October 12, 2009)

Whether the transfer value is unclear due to the lot of land transferred.

In the absence of special circumstances, the transfer value shall be calculated based on the actual transaction price under the sales contract, and evidence submitted by the tax authority to the extent that the transfer value is unclear is insufficient to recognize.

The contents of the decision shall be the same as attached.

1. The Defendant’s imposition of capital gains tax of KRW 422,582,90 against the Plaintiff on May 13, 2009 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On July 31, 2008, the Plaintiff transferred DD3's ownership to EEE Industry Development Co., Ltd. (hereinafter referred to as "non-party 1"), 95.9 square meters and above ground buildings (hereinafter referred to as "non-party 2 real estate"), the former DD3's 96 large scale 531 square meters and above ground buildings (hereinafter referred to as "non-party 2 real estate"), the same Gu D3's 96-3 large scale 129.9 square meters and above ground buildings (hereinafter referred to as "third real estate"), the same Gu D3's 107-6 large scale 79.3 square meters and above ground buildings (hereinafter referred to as "non-party 4 real estate"), and transferred the real estate to the Defendant as the transfer price of the real estate under the sales contract of this case, calculated the transfer price of the real estate under Article 27.8 billion won and paid the transfer price to the Defendant as the transfer price of each of the real estate under this case.

B. However, on May 13, 2009, the Defendant: (a) drafted a sales contract by parcel for the purpose of reducing the transfer income tax on the second real estate without distinction of lots; and (b) calculated the actual transaction value by parcel of each real estate at the time of transfer according to the market price of each real estate at the time of transfer in accordance with the criteria of each land at the time of transfer; and (c) corrected the gross amount of tax on the transfer of each real estate at KRW 980,370,332 after deducting the paid tax amount of KRW 545,698,410,00 from the above amount, and corrected and notified the amount of tax on the transfer of each real estate at KRW 42,582,90 as the Plaintiff’s transfer income tax for the year 208.

C. On August 4, 2009, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but was dismissed on October 12, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 5, Gap evidence 18-10, 14, 15, 19, Eul evidence 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Although the transfer value of each real estate of this case is clearly determined in consideration of the location, area, current status of use, restrictions on use, etc., the transfer value of each real estate of this case is obvious, the disposition of this case on the premise that the Defendant’s distinction is unclear is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) In imposing capital gains tax, the transfer value of assets shall be based on the actual transaction value between a transferor and a transferee at the time of transfer of the assets (Article 96(1) of the Income Tax Act). Meanwhile, if a person liable to pay capital gains tax submits a sales contract concerning the acquisition and transfer, transaction confirmation by a contracting party, certificate of seal impression, etc. as evidentiary documents related to the actual transaction value, the tax authority shall calculate capital gains based on the actual transaction value under each of the above sales contract, unless there are special circumstances, such as that each of the sales contracts was prepared differently from the actual transaction value (see Supreme Court Decision 95Nu3183, Jun. 25, 1996).

(2) Comprehensively taking into account the health care of the case, Gap evidence 6-1 to 4, Gap evidence 7-1 to 3, Gap evidence 8, Gap evidence 9-1 to 3, and the purport of the whole pleadings as to the testimony of KimB by the witness Kim Jong-B, the plaintiff concluded a sales contract on each of the real estate with the non-party company on March 14, 2008 at the name-based law firm office located in the 11st floor of Gangnam-gu Seoul, Gangnam-gu, Seoul, for the first real estate, KRW 69 million for the first real estate, KRW 2 real estate, KRW 785 million for the second real estate, KRW 3rd real estate, KRW 45 million for the fourth real estate, KRW 46 million for the fourth real estate, and attached a certificate of personal seal impression to the non-party company, each of which was paid to the non-party company on March 14, 2008, and each of which was paid to the non-party company.

According to the above facts, each real estate of this case seems to be clearly divided into the transfer value by parcel, and contrary to the fact that the transfer value is unclear, the entry of No. 10 in the evidence No. 11 and No. 12 and the testimony of Kim Jae-B is difficult to believe and otherwise there is no other evidence to acknowledge it.

(3) Therefore, the defendant's disposition of this case based on the premise that the transfer value of each real estate of this case is unclear is unlawful, and the plaintiff's above assertion is with merit.

3. Conclusion

If so, the plaintiff's claim is justified and accepted.