Cho High Court Decision 201Do0865 ( October 15, 2011)

The amount of compensation paid to the tenant is included in the transfer value as the transferor has paid the deposit to the tenant.

Since a corporation acquiring a building is deemed to have paid part of the purchase price of the real estate of this case for the reason that the transferor pays the tenant the security deposit to be paid instead of the purchase price under the sales contract, the disposition included in the transfer price is legitimate.

2011Gudan23101 Revocation of Disposition of Imposing capital gains tax

Park XX et al.

Head of Song District Tax Office and one other

December 7, 2011

January 18, 2012

1. The plaintiffs' claims against the defendants are all dismissed.

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

The disposition of imposition of capital gains tax of KRW 75,314,460 by the head of Song-Pacific Tax Office on December 6, 2010 and the disposition of imposition of capital gains tax of KRW 78,245,05,050 by the head of Song-Pacific Tax Office to Plaintiff ParkB on April 13, 2011 shall be revoked.

1. Details of the disposition;

A. On February 21, 1999, the Plaintiffs, Park D and Park E acquired 1/4 shares by inheritance of each of the instant land, and on June 19, 2006, the Plaintiffs, Park Dog-dong 000 (hereinafter “instant land”) acquired the instant land by inheritance of the Plaintiffs, Park Dog-dong 000 (hereinafter “instant building”). On June 19, 2006, the instant land was owned by Lee Ha-H, and the Plaintiffs, Park Dog and Park E acquired them by inheritance of 1/4 shares.

B. On April 17, 2008, the Plaintiffs transferred the instant land to O (hereinafter “O”) on April 17, 2008, and subsequently filed a preliminary return of capital gains tax base, with each of the transfer value (i.e., the transfer value of the instant land x 1/4) as KRW 500 million (i.e., KRW 2 billion x 1/4) and paid each capital gains tax on KRW 99,632,830.

C. After reviewing the details of acquisition of the instant land by the non-party company, the director of the distribution tax office confirmed that the non-party company paid KRW 670 million as compensation in addition to the purchase price of the instant land under the sales contract, and notified the Defendants as taxation data. The Defendants considered the above KRW 6770 million as the purchase price of the instant land in fact constituted the purchase price of the instant land, and notified the Defendants of the imposition of KRW 167,50,000 in addition to the Plaintiff’s transfer price of KRW 167,50,000 as the amount equivalent to the 1/4 of the said amount to the Plaintiff’s transfer price, the head of the Song District Tax Office imposed a disposition of KRW 75,314,460 for the capital gains tax of KRW 75,460 for the year 2008 on December 6, 201. The Defendant Gwangju District Tax Office imposed a disposition of imposition of KRW 78,245,050 for the year 208 (hereinafter referred to as each of the instant disposition).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 6, 7 (including paper numbers; hereinafter the same shall apply), Eul evidence 1

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

Of the 670 million won that the non-party company paid as compensation, 400 million won is part of the transfer value of the land of this case, but 270 million won is paid by the non-party company to six persons, such as KimF, who are the occupants of the building of this case, in order to promptly remove the building of this case. Among the occupants of the building of this case, the KimF had resided without compensation from the above KimF, and the remaining occupants had resided without compensation from the above KimF, and the plaintiffs had not received the deposit from the above occupants, it cannot be deemed that the non-party company paid the deposit to the above occupants on behalf of the plaintiffs. Accordingly, the amount equivalent to the plaintiffs' share out of the 270 million won that the non-party company paid to the above occupants should be deducted from the transfer value of the plaintiffs, and each disposition of this case is unlawful unless otherwise reported.

B. Determination

(1) The key issue of this case is whether the non-party company paid KRW 270 million to the occupants of the building of this case to the occupants of the building of this case, on the ground that the plaintiffs paid the security deposit to the tenants in lieu of the security deposit, etc., as part of the purchase price of the land of this case, or whether the non-party company paid it to receive promptly and promptly from occupants

However, in full view of the following facts, it is recognized that the above KRW 270 million was paid by the non-party company instead of the plaintiffs to the lessee and as part of the purchase price of the land of this case.

First, according to the evidence No. 2, it is recognized that the documents stating that the non-party company should pay 670 million won compensation to the plaintiffs, ParkD, and Park E, were sealed by the plaintiffs and Park E, Park E, and Park E, and therefore, the plaintiffs' assertion that the non-party company paid 270 million won to the occupants of the building of this case that is irrelevant to the plaintiffs is difficult to believe.

Second, according to the statement of the certificate of payment of the tenant deposit made by the non-party company (A evidence 4), the non-party company paid the Hah H Hah, which is the Lessee, KRW 20 million, KRW 151 million, KRW 150 million, KRW 20 million, KRW 33 million, KRW 30 million, KRW 30 million, KRW 30 million, and KRW 16 million, and KRW 16 million, respectively, to the Hah Hah. Even if so, it is determined that the non-party company's payment to the occupants is not a simple surrender, but a deposit.

Third, it is extremely large to view the amount paid by the non-party company to the occupants as a prestigious cost, and if it is not a deposit but a simple explanation, it is doubtful why there is a lot of difference in the amount for each occupant.

Fourth, in the court of law, KimF resided in the building of this case without compensation, and the plaintiffs were not aware of the contents of the deposit, and the amount of money received from the non-party company was returned to the non-party company. However, although the above KimF asserted that he leased part of the building of this case, the above KimF was unable to memory the contents of the lease, such as the amount of deposit, and there is no evidentiary document, the testimony is not reliable, and the fact that the occupants of the building of this case paid the deposit to KimF who were residing free of charge without entering into a lease contract with the owner, and that he paid the deposit to the owner of the building of this case is not believed in violation of the empirical rule. Furthermore, even in light of the fact that the plaintiffs reported that he reported the obligation of 150 million won to the KimF, the testimony that the above KimF was residing free of charge in the building of this case is difficult to believe.

(2) Therefore, each of the dispositions of this case, which was included in the transfer value of the land of this case paid by the non-party company as compensation, is legitimate, and the plaintiffs' assertion is without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case against the defendants is dismissed in its entirety as it is without merit. It is so decided as per Disposition.