Cho High Court Decision 2010Du2576 ( October 06, 2010)

The acquisition value confirmed by the on-site investigation of capital gains tax is legitimate.

The disposition that calculates gains on transfer by deeming the value confirmed by the Plaintiff in the field investigation of capital gains tax as the acquisition value is lawful, since there is no data to recognize the value of actual acquisition and the transferor and intermediary do not memory much.

2011Gudan276 Revocation of Disposition of Imposing capital gains tax

Maximum XX

The director of the tax office.

September 20, 2011

November 1, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 42,792,050 for the Plaintiff on December 9, 2009 shall be revoked.

1. Details of the disposition;

A. On July 1, 200, the Plaintiff acquired and owned the sales right (hereinafter referred to as the “instant apartment”) of Yongsan-gu Seoul Metropolitan Government 000-dong 000-dong 0000-dong (hereinafter referred to as “the instant apartment”). On August 31, 2000, the Plaintiff issued a transfer income tax with the transfer value of KRW 91,70,000, the acquisition value of the instant apartment as KRW 89,754,974, after transferring the instant sales right.

B. On December 9, 2009, the Defendant calculated gains from transfer as KRW 148,00,000 (the amount confirmed by the Plaintiff from the on-site investigation on the transfer income of Mapo Tax, September 30, 2002) and calculated gains from transfer as KRW 43,234,00,00, and determined and notified the transfer income tax of KRW 42,792,050 for the transfer income of 200 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 5, purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff acquired the instant sales right in KRW 145 million. The Plaintiff filed a return on the transfer income tax of the instant sales right and the amount confirmed by the field investigation of the transfer income tax after that return was conducted in a false manner for the purpose of reducing the transfer income tax. Therefore, the acquisition value of the instant sales right is not deemed as KRW 145 million or, even if it is not deemed as the said KRW 145 million, based on the estimation such as business example, etc., and there is no transfer margin in this case. Accordingly, the instant disposition otherwise

(b) Fact of recognition;

(1) The sales price of the apartment of this case was KRW 103,830,00,00, and the first buyer was female, and the Plaintiff acquired the sales price of this case under the condition that the remaining 14,075,026 won was unpaid.

(2) After the Plaintiff purchased the instant sales right from No.B by brokerage of No.B, the Plaintiff transferred the instant sales right to 148 million won to leapCC.

(3) Meanwhile, on September 30, 2002, after the transfer of the instant sales right, the Plaintiff confirmed the transfer value of the instant sales right as KRW 104,766,000.

[Reasons for Recognition] The above evidence, Gap evidence Nos. 6, 7, and 10, and the purport of the whole pleadings

C. Determination

(1) First, as to whether the acquisition value of the instant sales right was 145 million won or not, and the evidence submitted by the Plaintiff alone is insufficient to recognize that the acquisition value of the instant sales right was 145 million won or not, and there is no other evidence to support this, the Plaintiff’s assertion is without merit.

(2) The following circumstances are as follows: (a) the Plaintiff acquired the sales right of this case at the level of KRW 145 million on the ground that the acquisition value of the instant sales right is unclear; (b) while the Plaintiff did not submit any data about the acquisition price of the sales right of this case; (c) the transferor of the sales right of this case and the broker BB did not know about the transfer price of the sales right of this case; (d) on the other hand, the Plaintiff confirmed that the acquisition price of the sales right of this case was KRW 104,766,00 on the spot investigation on September 30, 202 after transferring the sales right of this case, it is difficult to view that the acquisition price of the sales right of this case was unclear; and (e) it is reasonable to deem that the acquisition price of the sales right of this case was KRW 104,766,00,000, which is the amount verified by the Plaintiff on the spot investigation.

D. Sub-committee

Therefore, the instant disposition that calculated gains on transfer by deeming the acquisition value of the instant sales right as KRW 104,766,000 is lawful.

3. Conclusion

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