Cho High Court Decision 2008west 1988 (2008.09)

The propriety of the disposition to which the acquisition value of the occupancy right is applied is deemed unclear.

Where it is impossible to recognize or confirm the actual transaction price at the time of acquisition, if there is an example of trading assets having the identity or similarity of the relevant assets within three months before and after the date of transfer or acquisition, the estimation investigation may be conducted.

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

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of KRW 69,705,90 on February 11, 2008 against the Plaintiff on February 11, 2008 shall be revoked.

1. Circumstances of the disposition;

A. A. On January 4, 200, the Plaintiff acquired the right to occupy the housing site area apartment zone (one name 'so-called 'so-called 'so-called 'the area subject to 'the area subject to 'the area subject to 'the area subject to 'the area subject to 'the area subject to 'the area subject to 'the area subject to 'the area subject to 'the area subject to 'the area subject to 'the area subject to 'the area subject to 'the area subject to 's ' the area subject to 's ' the area subject to 's ' the area subject to 's ' the area subject to 's ' the area subject to 'the area subject to 's ' the area subject to 's 'the area subject to ' the 'the area subject to ' the right to ' the occupancy'), which was assigned to the non-party '

B. Accordingly, on February 28, 2008, the Defendant reported the transfer of the right to acquire real estate, and the transfer value is the above 200 million won, which is the actual transaction value, and the acquisition value is the Plaintiff failed to present sales contract and financial data related to the acquisition of the right to move in in in in the instant case. On the ground that Article 114 (5) of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006) and Article 176-2 (1) and (3) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008), the Defendant decided the transfer income tax and the additional tax calculated on December 29, 206, and notified the Plaintiff of the total amount of the transfer income tax and the additional tax to be reverted to the housing site area in the uniform status of the right to move in in the instant case as of December 15, 1999.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 16 evidence, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Around January 2001, the Plaintiff acquired the right to move in of this case KRW 50 million through a real estate brokerage office, and subsequently transferred the right to move in of this case KRW 53 million on or around February 2006. However, in light of the sales contract or receipt at the time of the acquisition of the right to move in of this case, the actual acquisition price of the right to move in of this case is KRW 53 million at the time of the acquisition of the right to move in of this case, and there was a case where the acquisition price of the right to move in of this case was KRW 40.5 million at the time of other similar sales cases, and in light of the fact that the security amount at the time of the prohibition of the disposal of the right to move in of this case was KRW 30 million at the time of the provisional disposition, the acquisition price of the right to move in of this case should be KRW 405 million or KRW 30 million,000,000,000,000 for which the Defendant imposed the transfer income tax.

(b) Related statutes;

The entry of the relevant Acts and subordinate statutes is the same.

C. Determination

(1) First, as to whether the actual acquisition value of the occupancy right of this case, including a brokerage commission, is 58 million won or not, it is difficult to believe that each statement in the evidence No. 5 and No. 15, as shown above, was prepared by the plaintiff's wife, etc. in relation to the imposition of the transfer income tax of this case while there is no sales contract, etc. on the occupancy right of this case, and the plaintiff himself stated that the acquisition value of the occupancy right of this case is 40 million won in the court of this case. It is insufficient to recognize it only by the statement in the evidence No. 3,15, 18, 19, and 20, and there is no other evidence to acknowledge it. Meanwhile, according to the evidence No. 4, it can be acknowledged that the plaintiff acquired the occupancy right of this case, and then applied for a provisional disposition not to dispose of this case, the secured amount is 30 million won or more, but there is no evidence to acknowledge it differently from the acquisition value of the occupancy right of this case.

(2) Next, according to the records of evidence Nos. 6 through 15 on whether the transaction example of the occupancy right of this case can be seen as KRW 40,50,000,000,000,000,000,000,000 won, there is a special case of sale of the right to purchase with respect to the special right to purchase at KRW 40,50,000,000, in Seoul, ○○○-dong AT ○○○-dong 102, but the seller does not appear under the sales contract, as well as the sales price is deemed to include all legal expenses such as brokerage commission and provisional disposition, it is difficult to view it as a transaction example on the acquisition value

(3) Rather, according to the provisions of Article 114(5) of the former Income Tax Act and Article 176-2(1) and (3) of the Enforcement Decree of the same Act, where the transfer value or acquisition value is based on the actual transaction value, where it is impossible to recognize or confirm the actual transaction value at the time of transfer or acquisition of the pertinent asset due to the absence of books, sales contract, receipts, or other documents necessary to confirm the actual transaction value at the time of transfer or acquisition, or where the material part is incomplete, etc., the transfer value or acquisition value may be determined or corrected by estimating the transaction value or acquisition value of the pertinent asset within 3 months before or after the date of transfer or acquisition. In this case, there is no evidentiary document such as sales contract or receipt related to the acquisition of the occupancy right in this case. Meanwhile, according to the records of No. 2-1 to 6 of the above Act, the sale price of the instant housing site is 00 million won or more, and the above apartment site is 00 million won or more among the sale price of the instant housing site in this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.