Tax Tribunal 2012Seoul 3863 ( December 11, 2012)

It is reasonable to view that the instant amount is a kind of agreement on transactions related to a multilateral contract.

Since it is reasonable to view that the instant amount is a kind of agreement on the transaction related to a multi-unit contract, 440 million won is not a reason to exclude 440 million won from the transfer value of the instant real estate.

Article 96 of the Income Tax Act

2013Guhap7087 Revocation of Disposition of Imposing capital gains tax, etc.

AA

The director of the tax office.

November 15, 2013

on 21, 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 imposition of KRW 0,00,000,000 on the Plaintiff on June 22, 2012 shall be revoked.

1. Details of the disposition;

A. On November 18, 198, the Plaintiff acquired an O-X 203 square meters, an O-X 203 square meters, a 56.53 square meters for the above ground, a 81.65 square meters for the above ground, an 81.65 square meters for the above ground, an -X 68 square meters for the same day on September 25, 1996, and an 68 square meters for the same day on September 22, 2005, and a - XX 6 square meters for the same day on the same day (hereinafter referred to as the “instant real estate”), and concluded a sales contract on August 31, 2007, with respect to the instant real estate sold to the CCC (hereinafter referred to as “CCC”), and accordingly, completed the registration of ownership transfer from the CCC on October 24, 2007.

B. On December 28, 2007, the Plaintiff reported and paid KRW 000,000,000,000, which is the value calculated by converting the acquisition value of the real estate of this case into the standard market price, and KRW 000,000,000,000, which is the total amount of capital gains tax and resident tax (in this case, capital gains tax shall be calculated as the amount calculated by subtracting the amount of tax paid for preliminary return from the calculated tax amount of KRW 00,000,000,000, which is the amount of tax payable voluntarily) to the Defendant.

C. Since then, the director of Central Regional Tax Office conducted a tax investigation with respect to the Plaintiff. The Plaintiff transferred the instant real estate to CCC for KRW 0 billion, not KRW 000,000,000, not KRW 000,000,000, such as the transfer income tax already paid, to the Plaintiff, and the CCC shared the burden, and notified the Defendant, the disposition authority, of the same taxation data.

D. Based on the above taxation data, on June 26, 2012, the Defendant corrected and notified the Plaintiff of the transfer value of the instant real estate KRW 0,000,000 (i.e., KRW 000,000 + KRW 000,000,000, the conversion acquisition value of acquisition value of KRW 000,000,000, the conversion acquisition value of which is KRW 000,000,000 (total final tax amount minus KRW 0,000,000,000). (hereinafter “instant disposition”).

E. The Plaintiff is dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on August 27, 2012.

However, the above claim was dismissed on December 11, 2012.

Facts without any dispute, Gap evidence 1, Eul evidence 1 through 3, the purport of the whole pleadings, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff received KRW 00,00,000 from CCC under the pretext of transfer income tax, etc., since thereafter returned KRW 440,000 to CCC, the returned amount should be excluded from the transfer value of the instant real estate. Nevertheless, the instant disposition was based on the tax amount calculated by including the said KRW 4,40,000 in the transfer value, and thus, is unlawful.

B. Relevant legal principles and the issues of the instant case

If the contents of a real estate sales contract are the contents of a special agreement to bear the transfer income tax, etc. to be borne by the seller, and were fulfilled as they are, the amount equivalent to the above amount of tax shall be deemed as having a relationship between the transfer of real estate and the payment of the above amount of tax (see, e.g., Supreme Court Decision 92Nu2967, Jul. 14, 1992). However, inasmuch as the agreement to bear the transfer income tax is not actually implemented, the circumstance that such agreement was made does not necessarily mean that the seller has actually realized specific income, and it is difficult to deem that such agreement has yet been made, it shall not be included in the transfer value (see, e.g., Supreme Court Decision 9

The Plaintiff’s payment of KRW 40 million to CCC on December 20, 2007 is without dispute between the parties. If so, in light of the above legal principles, the legitimacy of the Plaintiff’s assertion depends on (i) whether the payment of KRW 440 million constitutes a return of the money in exchange for the transfer of the instant real estate, and (ii) whether it is necessary to deduct it from the transfer value because it was paid for reasons separate from the liquidation of the price for the transfer of the instant real estate; and (iii) whether it is necessary to deduct it from the transfer value. The following is to be seen as follows.

(c) Fact of recognition;

The following facts can be acknowledged in full view of the following facts, unless there is a dispute between the parties, or all or part of the evidence as mentioned above, evidence as mentioned above, evidence as mentioned above, evidence as mentioned in Eul 2 through 7, evidence as mentioned in Eul 5 (including the serial number), and witness BB's testimony as a whole.

(1) On August 2007, the Plaintiff sold the instant real estate in KRW 2.5 billion with the CCC. After concluding an agreement with the purchaser to bear capital gains tax and resident tax, the Plaintiff prepared a sales contract that contains such content, and prepared a sales contract that separately states the purchase price as KRW 0 billion.

(2) The CCC paid KRW 00,000,000 (the tax amount calculated as KRW 00,000,000) under an agreement between the Plaintiff and the CCC on the actual transfer price and KRW 000,000 (the tax amount calculated as KRW 00,000,000) by transferring the total amount of KRW 00,000 on August 31, 2007 and the total amount of KRW 00,000 on October 24, 2007 to the national bank account under the Plaintiff’s name. On the other hand, there was no special difference between the Plaintiff and CCC on the transfer price or the contract.

(3) After the end of November 2007, the general director and employees of the CCC requested the Plaintiff to enter into the transport contract, which goes beyond the first time (a demand of 50 million won or more) and, except so, would have known related agencies of the fact that the transport contract was entered into.

(4) The plaintiff sought advice from BB, the head of the office of the accounting firm office, and the above BB gave advice to the effect that "When calculating the transfer income tax with the transfer value of KRW 0 billion, it shall be additionally responsible for the amount of tax exceeding KRW 600 million added to the existing tax." Thus, on December 20, 2007, the plaintiff provided CCC with the amount of KRW 440 million to the CCC, and on December 20, 2007, the plaintiff received a receipt stating "amount: 440,000 won: Return of the land sale fund: Return of the real estate sale fund of this case" and a letter of commitment stating "I will not raise any civil and criminal objection due to this case in any case after preparing this undertaking with respect to the real estate sale case of this case."

(5) The CCC accounting of KRW 440,000,000,000 that it received, and there was no change in the content of the agreement on the burden of transfer money or transfer income tax, etc. on the contract previously prepared by the Plaintiff and CCC.

D. Determination

On October 24, 2007, the following circumstances revealed in the above facts, namely, ① the liquidation of the transfer price of the real estate of this case, including the implementation under an agreement on capital gains tax, etc. between the Plaintiff and CCC, was completed without any particular problem; ② there was a demand by CCC for money from the Plaintiff; ③ if the actual transfer price is revealed, the Plaintiff paid 4,40 million won to CCC, which is much larger than the amount required by CCC, and the Plaintiff did not raise any legal objection. In full view of the following circumstances, it is reasonable to view that the Plaintiff did not receive a correction of the terms and conditions of the existing contract, ⑤ the Plaintiff did not receive a refund of the transfer price for 44,400,000 won, and the Plaintiff paid 4,000,0000 won to CCC separately from the Plaintiff’s receipt for the transfer of the real estate of this case.

Therefore, since there is no reason to exclude the above KRW 440 million from the transfer value of the real estate of this case, the disposition of this case is legitimate, and the plaintiff's assertion based on a different premise is not acceptable.

3. Conclusion

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