2013west 3173 ( November 26, 2013)

Any disposition imposing capital gains tax by deeming the value confirmed by the contract agreement and documentary evidence, such as value-added tax reporting data, as real acquisition value, is legitimate.

In principle, the tax base and tax amount of income tax shall be determined by the actual amount revealed by the method of the on-site investigation, and the method of estimation shall be exceptionally permitted only when there is no taxpayer’s account books or documentary evidence or any other material part is insufficient or false and there is no other method by which the tax authorities can disclose the actual amount of income.

Article 100 (Calculation of Gains on Transfer of Income Tax Act)

Article 97 (Calculation of Necessary Expenses for Transfer Income)

2014Gudan2846

IsaA

Head of Yeongdeungpo Tax Office

October 15, 2014

November 19, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposing capital gains tax on the Plaintiff on May 1, 2013 is revoked.

1. Details of disposition;

A. On June 30, 2003, the Plaintiff acquired a building and a building on the ○○○○-dong, ○○○○-dong, ○○○○○○-dong (hereinafter “instant land”) and a building on the 214.2 square meters (hereinafter “the instant building”) from △△-dong, ○○-dong, ○○-dong, and removed the building, and then built five-story buildings for neighborhood living facilities (hereinafter “instant building”) and obtained approval for use on December 31, 2004.

B. On December 30, 2011, the Plaintiff transferred the instant land and buildings to the competent △△△△○○○○○○○○.

C. The Plaintiff calculated the acquisition value of the instant land and the instant building as ○○○○○○○○○, a conversion price for the acquisition value, and reported and paid the transfer income tax to the Plaintiff on May 1, 2013. However, on the ground that the actual acquisition value of the instant land was confirmed as ○○○○○○ and the actual acquisition value of the instant building as ○○○○○○○○○, respectively, on the ground that the actual acquisition value of the instant land was confirmed as ○○○○○, and the actual acquisition value of the instant building was identified as ○○○○○○○, a corrective and notification of the transfer income tax for the year 20

D. The Plaintiff had completed the pre-trial procedure.

[Grounds for Recognition] Unsatisfy, Gap 1 to 4-2, Eul 1 to 3

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the new construction of the building of this case, other than the construction cost paid to △△△ Development Co., Ltd., the Plaintiff additionally disbursed the construction cost that reaches several hundred million won by performing the construction work, such as interior works, either directly or through Park ○○, but it is difficult for the Plaintiff to pay the construction cost by cash or depositless account, and to clarify the amount thereof, the acquisition value of the building of this case shall be calculated as the conversion price. Accordingly, the instant disposition made on a different premise is unlawful.

B. Determination

○ In a lawsuit seeking the revocation of a disposition imposing income tax, the burden of proof on the tax base, which is the basis of taxation, is the tax authority. The tax base of revenue and necessary expenses, is the tax authority as a matter of principle, since the tax base of the tax base is deducted from necessary expenses. However, since most of the facts generating necessary expenses are favorable to the taxpayer, and it is difficult for the tax authority to prove it. Thus, if it is reasonable to prove the taxpayer in consideration of difficulty in proving it or equity between the parties, it accords with the concept of fairness (see, e.g., Supreme Court Decision 2006Du16137, Oct. 26, 2007). Meanwhile, in a case where the tax base and tax amount of income tax are determined by the actual amount revealed by the method of an on-site investigation, and in order to determine it by the method of an on-site investigation, there is no taxpayer’s account books or documentary evidence or any other material part therein, and the tax authority cannot be deemed as having been allowed to clarify the actual amount of income.

Therefore, even if a taxpayer of capital gains tax fails to prove his/her acquisition value claimed by himself/herself, the tax authority should investigate the actual acquisition value based on certain taxation data that conforms to the principle of taxation based on the basis of the taxation, and thereby impose tax accordingly. However, it is only allowed to impose additional tax only if there is no such taxation data as above and there is no way for the tax authority to clarify the real value.

According to the overall purport of evidence Nos. 4-1, 2, and 4-4 through 8, the Plaintiff prepared a contract for the new construction of the building of this case with the △△△△△△△△△△△△△△△△△△△△△△△△△△△△△ on April 27, 2004. The Plaintiff prepared a construction supervision contract between the contract amount and the construction office of this case on May 3, 2004. The Plaintiff prepared a construction supervision contract for the cause of the ○○○○○○○○○○○△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△△ apartment (oil), the Plaintiff reported and paid the tax base related to the new construction of the building of this case by calculating it as the ○○○○○○△△△△△△△△△ upon the supply price.

○ The instant disposition made on the same premise is lawful.

3. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit.