Cho High Court Decision 2010Du2097 ( October 13, 2011)

It is reasonable to view that real estate has been acquired by a purchaser.

Even on the sole basis of the payment of down payment, repayment of loans, succession to lease deposit, etc., a seller makes up for the purchase price claimed by the seller, and the price that was withdrawn from the bank on the date of transfer of ownership transfer, etc. can be recognized to have been paid to the seller in light of the location of the branch office of the bank

Article 97 (Calculation of Necessary Expenses for Transfer Income)

2011Guhap2560 Revocation of a disposition imposing capital gains tax

Nam

Head of Eastern Tax Office

January 19, 2012

February 9, 2012

1. The Defendant’s imposition disposition of KRW 92,841,730 against the Plaintiff on February 10, 2010 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 December 14, 2001, the Plaintiff purchased and owned the instant real estate from HongA and HongB on the Gangnam-gu Seoul Metropolitan Government 000-0 large 226.8m2 and the above-ground multi-family house 411.85m2 (hereinafter “instant real estate”) from HongA and HongB, and sold it to ParkCC on October 16, 2006.

B. On December 29, 2006, the Plaintiff: (a) filed a preliminary return of capital gains tax with KRW 7,091,400, the determined tax amount of KRW 3,274,474 with the Defendant, deducting the transfer value of the instant real estate as KRW 1 billion; and (b) the acquisition value as KRW 850,000,000; and (c) other necessary expenses.

C. On February 10, 2010, the Defendant confirmed that the HongA and RedB sold the instant real estate to the Plaintiff was different from the Plaintiff’s acquisition value by reporting the transfer value of KRW 630 million to the Plaintiff. After a fact-finding survey, the Defendant determined the Plaintiff’s acquisition value of the instant real estate as KRW 630 million and corrected and notified the amount of KRW 92,841,730 for the transfer income tax corresponding to the year 2006 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an objection on April 13, 2010, and filed an appeal with the Tax Tribunal on June 22, 2010, but was dismissed on May 13, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 4-1, Eul evidence 1, Eul evidence 2, Eul evidence 2-1, Eul evidence 2-1, Eul evidence 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

The Plaintiff acquired the instant real property in KRW 850 million from HongA and HongB, and even if the Plaintiff paid to HongA, the seller of HongA, the Plaintiff was only KRW 830,025,00,00, the Defendant’s disposition based on the premise that the Plaintiff acquired the instant real property in KRW 630,000,000, is unlawful.

2) The defendant's assertion

The Plaintiff asserted different contents of the contract, such as the submission of a statement of settlement on May 2007 and the submission of a statement of settlement on the spot inspection on December 2, 2009. In a trial request, the Plaintiff cannot be trusted by continuously changing the Plaintiff’s assertion, such as: (a) the Plaintiff’s return of the transfer income tax in this case; (b) the submission of a statement of settlement on May 2, 2007; (c) the submission of a different sales contract; and (d) the submission of a statement of settlement on the spot inspection on December 2, 2009; and (c) the modification of the amount of the deposit transferred to the Plaintiff as KRW 475 million; and (d) the acquisition value was reduced as KRW 670 million; and (e) the sales contract that the Plaintiff acquired at KRW 850 million by means of reduction of the acquisition value as KRW 670 million,000,000,00

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are either disputed between the parties, or there is no dispute between the parties, and the authenticity of the entire document is presumed to have been established as a whole because Gap evidence Nos. 2-1 through 4, Gap evidence Nos. 3, 4, and 5 (Evidence Nos. 4-3, unification of evidence No. 4-3, and the whole purport of the pleadings, according to the whole purport of the pleading, the whole of the documents can be acknowledged. The defendant defense that this document was forged by the plaintiff, but there is no other evidence to prove that some testimony of the witness RedA, which seems to correspond thereto, is difficult to believe, and there is no other evidence to prove it). Gap evidence Nos. 6-1, 6-2, Gap evidence Nos. 7-1, 7-2, Gap evidence Nos. 8, Eul evidence Nos. 4-3, Eul evidence Nos. 6 and 7-7, the result of the written appraisal by appraiser Kim G, and according to the purport of the whole pleadings

1) On December 14, 2001, the Plaintiff purchased the instant real estate from the HongA and the HongB. The HongB purchased the instant real estate as his father and wife, and the HongB received the sales price pursuant to the said sales contract as his father and wife.

2) The parties to the sale and purchase completed a sales contract (i.e., KRW 20 million on the contract date, the balance of KRW 830 million on the contract date, and the balance of KRW 830 million on December 31, 2001 with the purchase price of KRW 850 million as at the time of the said sale and purchase; (ii) as a matter of a special agreement, deposit currently includes in the purchase price confirmed at the time of the remainder of the purchase price; (iii) a loan of KRW 35 million shall be succeeded to or repaid at the Plaintiff’s will; and (iv) a deposit of KRW 5 million shall be paid at the time of the contract by December 22, 2001 (i.e., evidence and evidence No. 50 million; hereinafter referred to as “one sales contract”).

② On the other hand, in the unification of the aforementioned special terms and conditions, a sales contract (No. 6; hereinafter referred to as “two sales contract”) was also prepared to pay the remainder of KRW 20 million on the contractual date, and the remainder of KRW 610 million on December 31, 2001, with the sales amount of KRW 630,000,000.

3) According to the above sales contract, the Plaintiff paid 5 million won as part of the contract deposit, and 15 million won as the remainder down payment on December 20, 2001, respectively, to HongA. On December 29, 2001, the Plaintiff repaid 35 million won on behalf of the Plaintiff for light bank loans of Hong A, etc., Hong A, etc. on December 29, 2001 (the above collateral security was cancelled on January 16, 2002). The deposit succeeded to by the Plaintiff is KRW 475 million.

4) On December 31, 2001, HongA prepared and delivered a receipt of KRW 100 million and KRW 40 million to the Plaintiff on December 31, 2001 (Evidence 2-4, HongA denies denies the preparation of a receipt of KRW 40 million, but according to the appraiser Kim GG’s written appraisal result, two copies of the receipt of KRW 2-4 of the same person are presumed to have been written by the same person, and the confirmation letter of Section 5 below, where HongA acknowledges its authenticity, also stated that HongA received documents after the payment of the remainder, and that HongA may receive some balance of KRW 140,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000).

5) On December 2001, HongA made up to December 2001, the statement of confirmation (Evidence 6-1 of the certificate) under which the seller first pays to the Plaintiff the balance of KRW 140,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

6) On January 16, 2002, the Plaintiff withdrawn KRW 54,525,00 from among the money remitted to the Plaintiff’s husband at AA branch in the New Bank AA branch in the new bank. On the same day, after completing the registration of ownership transfer of the instant real estate, the Plaintiff created a collateral security at the OO branch in the new bank OE branch in the new bank, and then withdrawn the amount of KRW 85 million,18,500,000,000,000 from the loan. (According to the confirmation statement in paragraph (5) of the above, according to the confirmation statement in the above paragraph (5), it can be sufficiently known that there is any balance other than KRW 140,00,000 in each letter, and the Plaintiff asserted that there is no balance paid, and therefore, the Plaintiff’s statement was more reliable.)

6) Meanwhile, the HongA reported the transfer value of the instant real estate at KRW 630 million and paid the transfer income tax, etc. by reporting it as KRW 630 million.

7) For the instant real estate loan, the appraisal value of the instant real estate on January 7, 2002, which was commissioned by the head of the OO branch office of the new bank to △△ Appraisal Corporation, was KRW 701,085,600.

D. Determination

1) In the calculation of gains from transfer, the actual transaction value, which is the basis for the calculation of gains from transfer, means the actual transaction price, not the general market price reflecting the objective exchange value, but the price for the transaction itself or at the time of transaction

2) Therefore, considering the following circumstances acknowledged by the Plaintiff’s actual transaction price at the time of acquiring the instant real estate, (i) a seller may generally prepare a so-called multi-sale contract that lowers the purchase price as a matter of transfer income tax at the time of the sale and purchase of real estate; (ii) HongA’s actual seller’s report on transfer income tax based on two sales and purchase contracts, it may be deemed that the sales and purchase price of KRW 5 billion was 630 million was 5 billion for the remainder of KRW 100,000,000,000,000,000,000 won was 60,000,000,000,000 won was 50,000,000,000 won; and (iii) the Plaintiff’s remainder of KRW 600,000,000,000,000,000 won was 60,000,000 won.

Therefore, the Defendant’s disposition of this case, which is premised on the Plaintiff’s acquisition price of the instant real estate is KRW 630 million, is unlawful, and thus, is revoked.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified and it is so decided as per Disposition.