National Tax Service Review and Transfer 2009-0262 (20106.01)

The method of calculating the actual transaction price of a building according to the appraisal price ratio of land and buildings is legitimate.

Since the distinction between the value of a building and land is unclear, it is legitimate to calculate the actual transaction value of the building in proportion to the ratio of the appraisal value, and it is obvious that the remaining claims under the real estate exchange contract are not likely to be recovered due to the bankruptcy of the other party.

2010Guhap12201 Revocation of Disposition of Imposing capital gains tax

XX

O Head of tax office

June 23, 2011

July 7, 2011

1. The Defendant’s disposition of imposition of capital gains tax of KRW 542,895,040 for the Plaintiff on August 1, 2009, exceeding KRW 218,601,347, is revoked.

2. The plaintiff's remaining claims are dismissed.

3. 3/5 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s disposition of imposing KRW 542,895,040 on the Plaintiff on August 1, 2009 is revoked.

1. Facts of recognition;

A. Conclusion, etc. of the instant exchange contract

(1) On October 28, 2004, the Plaintiff entered into a contract with EA, Suwon-si, XX 651-4 square meters, 593-1 square meters, 5,221 square meters of each of the above sites and buildings, and 5,221 square meters of each of the above sites and buildings (hereinafter referred to as "land subject to dispute", and individually "land subject to dispute", and "land subject to dispute", and the equipment and facilities of OO 243-21, 45 square meters (hereinafter referred to as "OO 243-21, hereinafter), Suwon-si, AAA-Gu, AA26-1, 636.9 square meters, and above ground buildings (hereinafter referred to as "A2") under the agreement with EA (hereinafter referred to as "the agreement with EA2") with each of the following parties.

2) After the instant exchange contract, thisA completed the registration of creation of a mortgage over the maximum debt amount of 330 million won with respect to the land of this case on November 4, 2004, and the Plaintiff paid KRW 50 million to the lessee out of KRW 800,000,000,000 to the KimB. The Plaintiff changed part of the terms of the instant exchange contract with thisA on December 30, 2004. The specific details are as follows.

(The following table omitted)

3) Meanwhile, with the Plaintiff’s consent on January 6, 2005, prior to the completion of the registration of ownership transfer (registration date January 10, 2005) in the name of the Plaintiff with respect to a female land, the registration of creation of a mortgage, which is the debtor EA, the mortgagee and the mortgagee, was completed (hereinafter referred to as the “mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-backed land”).

B. The Anmardo of this case (a disputing real estate and leisure land)

1) On January 7, 2005, the Plaintiff transferred the pertinent real estate (transfer registration) to thisA, acquired the land on January 10, 2005, and acquired the AAdong Telecom on March 18, 2005 (each transfer registration) respectively.

2) After October 14, 2005, the Plaintiff transferred the said land to KimCC. The sales contract signed between the Plaintiff and KimCC on October 14, 2005 between the Plaintiff and the Plaintiff on the said land was made on October 14, 2005, with a total of KRW 590 million, and as a condition for sale, KRW 100 million shall be paid to the Plaintiff a down payment of KRW 100 million. ② The first priority collateral collateral (the maximum claim amount, KRW 330 million, KRW 100 million, and KRW 280 million, KRW 1000,000,000,000, and KRW 200,000,000,0000,000 won, and ③ The KimCC was liable for the said land, but if the right to collateral collateral was terminated through the auction of the real estate offered as a joint collateral, KimCC was cancelled due to the cancellation of the land on June 26, 2006.

(c) Plaintiff’s return on tax base of transfer income;

On September 2, 2005, the Plaintiff calculated each transfer margin on the key land as the standard market price (acquisition value of 58 million won, transfer value of 1.59 billion won) and as the actual transaction price (acquisition value of 4.77 billion won, transfer value of 3.69 billion won, transfer value of 3.69 billion won) for the key building, and filed a report on the tax base of transfer income for the Defendant in 2005.

(d) Field investigation of capital gains tax and notification of taxation data;

1) On February 17, 2009, the director of the Central Regional Tax Office of China conducted a field investigation of capital gains tax on the pertinent real estate: (i) deemed that the transfer value of the pertinent building was voluntarily calculated without any reasonable ground; and (ii) on January 7, 2005, the value of the building at issue was determined as KRW 420 million (the maximum amount of claims, KRW 420 million, KRW 10000,000,000,000,000 won, KRW 8.768 billion,000,000 won, in proportion to the value of the land and building at the time of December 17, 2004; and (iii) confirmed that KimCC subrogated for the insurance company on December 4, 2006, KRW 420,0000,0000,0000,0000 won, based on the pre-announcement of the transfer value of the pertinent land + KRW 2.8 billion,000,00 million.

2) The Plaintiff filed a request for pre-assessment review on May 10, 2009, and the director of the Central District Tax Office of Jungbu District District Tax Office, from the balance of this case 1.2 billion won, sold the Jeju land and received by the Plaintiff from 1.2 billion won, and completed the provisional registration of the right to claim partial transfer of ownership on January 6, 2005 on the Jeju land to guarantee the payment of the above 1.2 billion won, and sold it to the third party on June 5, 2007 after the registration of ownership transfer was completed on January 26, 2007, and notified the Defendant of the taxation data after deducting the remaining 750 million won after the Plaintiff deducted the balance of this case from the transfer value by considering the Plaintiff’s non-collection claim against thisA.

E. The instant disposition and the pre-trial procedure

1) On August 1, 2009, the Defendant issued a revised and notified the Plaintiff of the transfer income tax in 2005 at KRW 542,895,040 (including the amount of tax already paid, after deducting the amount of tax already paid,) by taking the transfer value of the land at issue as the standard market price, and the transfer value of the building and leisure land at issue as the actual transaction value, according to the above taxation data (hereinafter “instant disposition”).

2) The Plaintiff dissatisfied with the instant disposition and caused a request for examination to the Commissioner of the National Tax Service on October 27, 2009, and was dismissed on June 1, 2010.

[Ground of Recognition] A without dispute, Gap evidence 1, Eul evidence 2-1 through 5, Gap evidence 3, 4, 6, 16, Gap evidence 17, 19-1, 2, Eul evidence 22, Eul evidence 1 through 4, Eul evidence 7, Eul's witness witness testimony and the purport of whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Illegal assertion in the calculation of transfer value

Although the transfer value of the building in question, 3.692 billion won, and 590 million won in the transfer value of the building in question declared by the Plaintiff was the actual transaction value, the Defendant’s deeming the transfer value of the building in question as 5.02 billion won in the transfer value of the building in question, and 81 billion won in the transfer value of the building in question as 80 million won in the transfer value of the building in question

(2) Illegal assertion of non-collectionable claims

① From among the obligation to return the lease deposit for the pertinent real estate, thisA takes over only the obligation to return the lease deposit amounting to KRW 90 million for the lessee’s GaDD and EE, and the other party did not take over the obligation to return the lease deposit amounting to KRW 660 million in total to the lessee’s GaF, Gangseo, Lee H, Kim K, KimK, KimM, OM, UOP, and KimP, among the obligation to return the lease deposit for the pertinent real estate, the Plaintiff was awarded a contract with the third party on April 6, 2005 and the auction procedure was commenced on August 28, 2006, and the lessee was fully unable to recover the lease deposit at the above auction procedure, and the Plaintiff was still liable to pay KRW 6620,000,000,000 to the Plaintiff as the third acquisitor’s Ba’s Ba’s Ba’s Ba’s Ba’s Ba’s Ba’s Ba’s 2.

However, thisA has actually gone bankrupt, and accordingly, the plaintiff's claim of the amount of KRW 2280 million against thisA (hereinafter referred to as "the plaintiff's claim") has become impossible to recover, and the possibility of realizing the capital gains in the future has become nonexistent.

Nevertheless, the Defendant recognized only 1.28 billion won of the instant claim as the remainder of 2.2 billion won, and on the premise of the recognition, deducted 450 million won of the purchase price of the Jeju land from the said 1.2 billion won, and deemed that the remainder of 750 million won constituted an irrecoverable claim. As such, it is unlawful to exclude this portion from the irrecoverable claim, since the Plaintiff’s claim for return of lease deposit amounting to 660 million won, and the claim related to the secured obligation against the right to collateral security on the land located in the said 1.2 billion won is included in the Plaintiff’s irrecoverable claim, and thus, it is unlawful to exclude this portion from the irrecoverable claim. Since the amount was entirely appropriated to the principal of 1.2 billion won of the instant balance of the Jeju land purchase price of KRW 450 million, and thus, it is also unlawful to deduct the remainder of this case from the balance of 1.2 billion won.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination on the illegality of calculating the transfer value

1) As to the transfer value of the pertinent building

According to the contents and the purport of the evidence Nos. 2 and 3, the value of the following issues and the building at issue may be recognized:

(The following table omitted)

In addition, even though the book value, standard market price, and appraised value of the building at issue are much higher than those of the land at issue, the transfer value of the land at issue is higher than the transfer value of the building at issue in the instant exchange contract, and the Plaintiff did not present any supporting document dividing the value of the land and the building as stated in the exchange contract. In addition, it is reasonable to deem that the Plaintiff arbitrarily raised the transfer value of the building at will without any objective grounds to lower the transfer margin of the building at issue, and lower the transfer value of the building at issue without any counter-proof evidence. The Plaintiff did not have any counter-proof evidence.

Furthermore, according to Article 100(2) of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the same), Article 166(2) of the Enforcement Decree of the same Act, and Article 48-2(4)1 of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 1930 of Feb. 9, 2006), where land and buildings are acquired or transferred together, they shall be divided into several parts in calculating gains on transfer, and where the land and buildings are acquired or transferred together, they shall be entered, and where the classification of land and buildings is unclear, it shall be calculated in proportion to the value calculated according to the standard market price at the

If the appraisal value exists, the actual transaction value of the pertinent real estate is calculated in proportion to the assessment value. In this case, 8.76 billion won (i.e., 9.., 3.3 billion won) but among them, it is not clear that the actual transaction value of the pertinent real estate is divided into the value of the pertinent building and the land. As such, in accordance with the above Act and subordinate statutes, if an OO appraisal corporation calculates the actual transaction value of the pertinent real estate in proportion to the appraisal value of the land and the building appraised at the time of December 17, 2004 (i.e., 5,018, 981, 981,057 (i.e., 8., 68 billion won) (i., 4.8 billion won) and 4.85 billion won (i.e., 65 billion won) and 8.8 billion won (i., 9

Therefore, the Plaintiff’s assertion that the transfer value of the building at issue issued by the Plaintiff is the actual transaction price is accepted, and it is legitimate that the Defendant calculated the actual transaction price of the building at issue in proportion to the appraisal price in proportion to the appraisal price (However, the price is KRW 5 billion, not KRW 5 billion but KRW 18,981,057).

2) As to the transfer value of such land

As seen earlier in the facts established on October 14, 2005, which was prepared between the Plaintiff and KimCC as to the land of female, the terms and conditions of the sales contract as of October 14, 2005, which were entered into between the Plaintiff and KimCC, were to be responsible for the right to collateral security on the land of female, and KimCC subrogated for 420 million won on December 4, 2006 to the relevant insurance company, and the aforesaid right to collateral security was cancelled on December 4, 2006. As such, the transfer value of the land of female is KRW 810 million on the ground that the said right to collateral security was cancelled on December 4, 2006 (i.e., the down payment of KRW 110 million on the above sales contract + KRW 280 million on the first priority right to collateral security + KRW 4220 million on the land of female land). Therefore, the Plaintiff’s assertion on this part is without merit.

C. Determination on illegality in non-collectionable claims

The plaintiff's claim shall first be determined whether the balance of the exchange agreement of this case constitutes a claim for the remainder, and on the premise of such determination, whether the balance of the contract of this case can be deducted from the purchase price of the land from 1.2 billion won among the remainder of the contract of this case.

1) Whether the Plaintiff’s claim constitutes a balance claim under the instant exchange agreement

A) Claims with the instant balance of 1.2 billion won constitute the remainder claim under the instant exchange agreement.

B) We examine claims related to the refund of lease deposit amounting to KRW 660 million.

In a case where the buyer of a real estate takes over the obligation to return a lease deposit with respect to the subject matter of sale, and the buyer agrees to deduct the amount of the obligation from the purchase price, such acquisition shall be deemed as an acceptance of performance, not an exemption from the seller, barring any special circumstances, and in order to regard the buyer as an exemption from liability, the buyer’s consent should be required. Meanwhile, in a case of a performance acquisition, where the seller pays the buyer’s obligation to take over on behalf of the buyer due to nonperformance of the buyer’s obligation to take over or at his/her own discretion, the seller has a claim for damages or indemnity against the buyer, and where the seller pays the buyer’s obligation and claims for the payment of the purchase price equivalent to the amount of the purchase price to the buyer (see, e.g., Supreme Court Decision 97Da127

According to the health class, Gap evidence Nos. 8-1, 2, 9, 10, 12, 13, and 15, respectively, and Gap evidence Nos. 1, 11, and 15, respectively, as to this case, it can be acknowledged that the plaintiff stated that "if the plaintiff transfers the disputed real estate to a third party at the time when the plaintiff owned the real estate, the lease contract shall be automatically succeeded to the transferee of the disputed real estate," but the above agreement is interpreted to protect the lessee's status as the lessee. This circumstance alone does not mean that the lessee consented to the lessee's exemption from the obligation to return the security deposit, and there is no other evidence to acknowledge the exemption from liability.

In addition, in view of the overall purport of evidence No. 9-2 through 6, evidence No. 10-2 through 4, evidence No. 12-2, evidence No. 12-3, evidence No. 13-2, evidence No. 14-2, evidence No. 26-1 through evidence No. 5, and the overall purport of the arguments and arguments as to the lease deposit against the lessee, the Plaintiff was deemed to have fully repaid the lease deposit amount of KRW 660,00,000 to the lessee who was unable to recover the lease deposit at all during the auction procedure for the pertinent real estate, and thus, the Plaintiff may exercise the claim for damages or reimbursement of KRW 660,00,000 for the lease deposit amount of KRW 660,000,000 for the remainder of the contract of exchange in lieu of the claim for compensation or reimbursement under the exchange contract of this case.

C) We examine related claims of 420 million won with respect to secured debt of 420 million won with respect to the land collateral security right.

Since the Plaintiff, as a third acquisitor, had the obligation to pay by subrogation, KRW 420 million,00,000,000,000,000 for the secured obligation of the land collateral security to be paid by subrogation after the amendment to the exchange contract of this case, this is merely a claim arising out of a cause separate from the exchange contract of this case, and thus, the claim related to the secured obligation of KRW 420,000,000,000,000,000,000,000,000,000 were allowed to be paid by the parties to this case.

2) Whether the claim can not be recovered

A) The former Income Tax Act adopts the so-called principle of confirmation of a right to taxable income by deeming that a right that serves as a cause of income does not have any actual income if it is definitely accrued, even if a claim that serves as a cause of income has accrued, if it is objectively evident that a claim that serves as a cause of income becomes impossible to recover due to the debtor's bankruptcy, etc. and that it becomes no possibility of realizing the income in the future, the income tax that is subject to such economic benefits should lose its premise, and cannot be imposed on such income as taxable income. However, it should be clearly stated that the taxpayer has no income subject to taxation by asserting and proving such circumstance. In such a case, whether a claim is impossible to recover should be determined by the method of objectively evaluating the debtor's asset status and payment ability in accordance with the specific transaction details and subsequent circumstances (see, e.g., Supreme Court Decisions 2001Du1536, Oct. 25, 2002; 200Du18749, Jan. 14, 2010).

B) The following facts can be acknowledged in full view of the evidence Nos. 7-1 through 3, Gap evidence Nos. 22, 24, and 25, Eul's witness testimony, the Chairman of the Bank of Korea established by this court, and the purport of the entire pleadings as a result of each fact-finding with respect to the Namyang-ju market.

(1) On March 18, 2005, the Plaintiff filed a complaint with the Suwon District Prosecutors' Office to the effect that thisA had deceiving the Plaintiff and stolen and stolen 1.2 billion won of the balance of the instant case by deceiving the Plaintiff. The prosecutor of the Suwon District Prosecutors' Office of the Eunpyeong District Prosecutors' Office issued a non-prosecution disposition on November 25, 2005.

(2) On April 2004, thisA had registered the credit information above on the credit information joint network managed by the Korea Federation of Banks since 2005, as it did not pay a loan of KRW 8,253,000 to △△ Capital, and did not pay a loan to various financial institutions, etc. and did not pay taxes.

(3) Since 2004, there was no details of property tax imposed on thisA, and on the value-added tax imposed on this A on September 26, 2006, the director of the tax office of the same orchard written off the disposition of non-property.

(4) 여주 토지에 설정된 근저당권부 피담보채무를 이AA이 변제하지 않아 김QQ가 2006. 12. 4. 이를 대위변제하였고, 원고의 신청으로 2005. 3. 6. 쟁점 부동산에 대한 부동산강제경매절차가 개시되어 쟁점 부동산이 제3자에게 매각되었는데, 위 경매 절차에서 근저당권자인 XX보험 주식회사가 채권액 62억 8,400만원 중 37억 9,100만원을 변제받았을 뿐이다.

C) According to the above facts, the claim of KRW 1.86 billion in total, 1.86 billion in the balance of this case and the claim of KRW 666 million in relation to the obligation to refund lease deposit prior to the disposition of this case, was objectively evident that there is no possibility of recovery due to the bankruptcy of thisA. Thus, the above KRW 1.86 million in total, which is calculated in proportion to the actual transaction price of the building in the issue of this case calculated in accordance with the exchange contract of this case, among the total value of the real estate and the equipment and facilities, should be deducted from the transfer price of the building in question. Accordingly, the plaintiff's assertion on this issue is reasonable within the above scope of recognition.

3) Whether the purchase price of Jeju land can be deducted from the balance 1.2 billion won

The defendant deemed that the purchase price of Jeju land was appropriated as part of 1.2 billion won in the balance of this case, and deducted the above amount from the non-collectionable claim. However, according to the evidence Nos. 16 and No. 18-1 and No. 2 of the evidence No. 18-2, the plaintiff paid 165 million won to the plaintiff on June 5, 2007, which was established before the provisional registration of the Jeju land was established by the plaintiff on July 25, 2002. The plaintiff paid 12,814,000 won in total, including provisional registration of the Jeju land, acquisition tax, registration tax, judicial scrivener's expenses, etc. at the time of transfer of ownership, and it is recognized that the amount actually recovered is merely 272,185,600 won in total, and the above money was not recovered from the sale price of this case to 1.275 million won in accordance with Article 479 of the Civil Act, the plaintiff's allegation that the above money was accrued from the above interest on the sale price of this case.

(d) Justifiable tax amount.

As seen above, the reasonable transfer value of the pertinent building is KRW 3,93,123,391 (i.e., actual transaction value of KRW 5,018,981,057 - 1,025,857,666) when calculating a reasonable tax amount on the real estate and the land of a female owner based on the amount of unrecoverable claim amount, such as the statement in the calculation of the attached tax amount, would be 218,601,347 (including additional tax).

3. Conclusion

Therefore, since the part exceeding KRW 218,601,347 among the disposition of this case is unlawful, the plaintiff's claim is accepted within the above scope of recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.