Seoul Administrative Court 201Gudan4889 ( November 01, 201)

Cho High Court Decision 2010Du3163 ( December 28, 2010)

Since the actual transaction price is confirmed, the conversion price is applied unlawful.

Since the purchase price of a commercial building and the sale price shall be determined to succeed to the existing lease deposit and the fact that the down payment and the remainder are paid to the actual transferor, the disposition to apply the conversion price is illegal because the actual transaction price can be verified.

Article 97 of the Income Tax Act

2011Nu42149 Revocation of disposition of imposing capital gains tax, etc.

The AA

Head of Yongsan Tax Office

Seoul Administrative Court Decision 2011Gudan4889 decided November 1, 2011

April 20, 2012

May 25, 2012

1. The defendant's appeal is dismissed.

2. The appeal costs are unfair for the defendant.

1. Purport of claim

The imposition of capital gains tax (additional tax) imposed on the Plaintiff on February 1, 2010 by the Defendant shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of disposition;

The reasons for this part are the same as the corresponding part of the judgment of the court of first instance, and they are cited by Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff actually pays 000 won out of the down payment 000 won and the remainder of the down payment from NewGG to NewB, and the remaining 000 won is paid in full as the Plaintiff succeeded to the existing lease deposit with respect to the instant commercial building in lieu of the Plaintiff, and the actual transaction price of the instant commercial building is 000 won. Therefore, the instant disposition that calculated the acquisition value based on the conversion price is unlawful, even if the acquisition value of the instant commercial building cannot be confirmed based on the actual transaction price, even if the acquisition value of the instant commercial building is to be calculated accordingly.

B. Defendant’s assertion

The plaintiff's decision to purchase the commercial building of this case from newB was made on May 3, 2005 with the purchase price of KRW 000, and it was found that the plaintiff paid 000,000, and there was no objective data such as financial data about KRW 000,000, and there was no other indication about the remaining 00,000, and there was no doubt about whether the plaintiff succeeded to the existing lease deposit about the commercial building of this case in lieu of the payment of the purchase price. There was no objective data about the fact that the plaintiff returned 00,000, and that there was no objective data about the fact that the 400,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000.

C. Determination

1) In full view of the overall purport of the evidence submitted by the Plaintiff and the Defendant, and the following facts can be acknowledged.

A) On the introduction of the UF, the Plaintiff purchased the instant commercial building from the NewGro around May 2005, and on May 3, 2005, the sales contract was written in 000 won (contract deposit KRW 000, remainder 000), and the down payment was paid by the Plaintiff on the date of the contract, and there is no indication about the succession of the lease deposit of KRW 000,000 claimed by the Plaintiff.

B) Of the above 000 won, the amount confirmed as being paid by the Plaintiff to newG by means of financial data is KRW 000.

C) Before the Plaintiff purchased the instant commercial building, KimCC was working on the instant commercial building by leasing the instant commercial building from NewGG. However, KimCC appeared in the court of first instance to be 00 won and memoryd that the deposit for lease was 00 won. Around July 2005, 2005, the Plaintiff stated to the effect that the said deposit was refunded while delivering the instant commercial building to the Plaintiff.

D) After purchasing the commercial building of this case, the Plaintiff leased the commercial building of this case to HH, and on June 21, 2005, the monthly rent of 00 won and 000 won were stated in the monthly rent contract of this case. At the court of first instance, as stated in the above contract at the court of first instance, the Plaintiff leased this commercial building of this case to 00 won and 000 won for each month, as stated in the above contract, as the Plaintiff was present at the court of first instance, and the Plaintiff stated to the effect that 00 won and 00 won for all tenants, and 00 won for each deposit (the Plaintiff did not were the Plaintiff) in the place where the UF broker brokered the above lease, and the monthly rent was 00 won from August 10, 2005 to November 10, 2006 to October 10, 2006.

E) The court of first instance presented that the UF, which arranged a sales contract between the Plaintiff and the newG, was present as a witness in the court of first instance, and then purchased 000 won monthly rent of KRW 000 at the time as a result of the purchase of the purchase price at KRW 000,000, and that the remainder was paid only, and that the Plaintiff and the most JJ also mediated the lease contract between the Plaintiff and the JJ, and that 00 won were memoryd at KRW 00,000, monthly rent of KRW 00, and 000, a deposit was directly presented to the former KimCC.

2) On the basis of the above facts, the Plaintiff purchased the instant commercial building from NewG to KRW 000, and decided to succeed to the deposit for lease of KRW 000, and actually paid the remainder of KRW 000 and the remainder to newGG. Therefore, the actual transaction price of the instant commercial building appears to be KRW 000,000. As such, it is insufficient to recognize that the assertion on the rate of market price increase in the instant commercial building except for the part rejected below among the circumstances alleged by the Defendant as above is only a formal amount under the contract, and thus, it is insufficient to recognize that the actual transaction price constitutes a case where the actual transaction price cannot be confirmed, and there is no other supporting evidence, and the instant disposition made on a different premise is unlawful.

A) In light of the fact that the Plaintiff received 000 won of the down payment on the date of the contract, and the Plaintiff actually paid 000 won as the down payment to the newB in the form of the down payment column between the Plaintiff and the newB, and the fact that the seal of the newG was affixed on that side, and that the Plaintiff actually paid 00 won to the newB (it cannot be ruled out that the Plaintiff was a third party unrelated to the above contract, which the final owner of the cashier’s checks alleged to have been paid to the tax authority as the down payment, and that there is no possibility that there is any cause to deliver a cashier’s checks to a third party. Moreover, the entry in the column of the above contract in the column of the down payment is different from the entry in the form of the purchase price, and it is not concluded that the real down payment was not paid solely on the above basis).

나) 원고가 이 사건 상가를 매수하기 전 이 사건 상가에 관한 임대차계약이 있었는지， 그 계약의 임대차보증금의 금액이 얼마인지， 이를 원고가 승계하였는지，원고 가 새 임차인인 최KK으로부터 임대차보증금 000원을 받아 이를 전 임차인인 김CC에게 반환하였는지에 관하여 관련자인 유FF， 최DD， 김CC 모두 일치하여 원고 주장사실에 들어맞는 진술을 하고 있다(여러 명의 관련자가 서로 일치된 진술을 하고 있을 뿐만 아니라 이들의 진술을 의심해 볼 만한 별다른 사정이 없는 이상， 이 사건 상가에 관한 매매계약서에 임대차보증금을 원고가 승계한다는 기재가 없거나, 김QQ이 사업자등록 신정을 하지 않았다거나，원고가 김CC에게 000원을 반환한 사실에 관한 객관적 자료가 없다거나， 최DD과 김EE이 과세관청에 신고한 이 사건 상가에 관한 임대차보증금이 000원과 차이가 난다는 사정만으로 위 진술들을 배척할 것은 아니다).

C) As seen earlier, in light of the fact that the lowest RR leased by the Plaintiff from the instant commercial buildings under the monthly agreement transfers the Plaintiff’s name from August 8, 2005 to November 10, 2006 to the Plaintiff’s account each 000 won each month under the name of the Plaintiff, the husband of the highest RR, as the monthly agreement, the Plaintiff may be ratified as having leased the instant commercial building under the name of the Plaintiff’s name, and the Plaintiff leased the instant commercial building to the highestJ at KRW 00 and KRW 3 million each month, and the lease between NewG and KimCC was also the same condition.

3. Conclusion

If so, the plaintiff's claim of this case should be accepted for the reasons, and the judgment of the court of first instance is just with this conclusion, and the defendant's appeal is dismissed for lack of reasons.