Cho High Court Decision 2010Du3369 ( October 24, 2011)

The actual acquisition value of the repayment, such as the collateral security debt, provisional attachment debt, etc. on apartment at the time of acquisition of apartment;

Since an apartment is purchased in the form of acquiring an obligation on the apartment, not in full payment of the purchase price under the sales contract prepared by acquiring the apartment, the actual acquisition price of the repayment of various collateral security obligations on the apartment, provisional attachment obligations, etc. shall be deemed the actual acquisition

Article 97 of the Income Tax Act

201-gu 22528 Disposition of revocation of imposition of capital gains tax

Hongx

Head of Guro Tax Office

July 24, 2012

September 19, 2012

1. The Defendant’s imposition disposition of capital gains tax of KRW 000 against the Plaintiff on August 10, 2010, exceeding KRW 000, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The Defendant’s disposition of imposition of capital gains tax of KRW 000 against the Plaintiff on August 10, 2010 is revoked.

1. Details of the disposition;

A. On March 22, 2006, the Plaintiff acquired and owned the instant apartment at 000-10 Dong 000-101 (hereinafter “instant apartment”) from Yangcheon-gu Seoul Metropolitan Government, Yangcheon-gu, Seoul, and transferred the instant apartment on July 29, 2008 (a successful bid due to a voluntary auction).

B. On August 10, 2010, the Defendant decided and notified the Plaintiff of the transfer value of the instant apartment as KRW 000, the acquisition value of the instant apartment as KRW 000, and the transfer income tax of KRW 000 for the year 2008 (including additional tax) (hereinafter “instant disposition”).

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, 2, Eul evidence 3, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Even if the Plaintiff did not purchase the apartment of this case in 000 won, since the actual amount actually spent to acquire the apartment of this case is KRW 000, it is necessary to calculate gains on transfer by using the above amount as acquisition value at least. Therefore, the disposition of this case, which reported differently, is unlawful.

(b) Fact of recognition;

(1) The Plaintiff, upon introduction by KimA, purchased the instant apartment from the BB, and decided to acquire various obligations under the instant apartment.

(2) On March 22, 2006, the Plaintiff completed the registration of ownership transfer for the instant apartment on the part of the Plaintiff, and received a loan as security and repaid the collateral and provisional seizure debt related to the instant apartment, but the Plaintiff failed to repay the above loan debt, and was awarded a successful bid in KRW 000 after the voluntary auction procedure was commenced with respect to the instant apartment.

(3) In relation to the acquisition of the apartment of this case, the Plaintiff’s total amount required to repay the collateral security debt, provisional attachment debt, etc. (i.e., Seoul Livestock Industry Cooperatives’ obligation of KRW 000 + National Bank’s obligation of KRW 000 + KRW 000 + KRW 000’s obligation of the Japan Bank’s obligation + KRW 000 + KimA obligation of KRW 000).

[Ground of recognition] The above evidence, Gap evidence Nos. 3 through 6, 8 through 10 (including each number), Eul evidence No. 1, part of witness KimA testimony, the defendant bank, Seoul Livestock Industry Cooperatives, the Korea Asset Management Corporation, the Korea Standards Domind Bank, and the OO00 management company, the purport of the whole pleadings, as a result of each private inquiry about the above evidence, Gap evidence Nos. 3 through 6, 8 through 10 (including each number).

C. Determination

(1) The acquisition value of the apartment of this case

Actual transaction value as a basis for calculating gains on transfer refers to the actual transaction value, not the general market value that reflects objective exchange values, but the actual transaction value itself or at the time of transaction (see, e.g., Supreme Court Decisions 2009Du19465, Feb. 10, 201; 97Nu629, Feb. 9, 199).

In this case, according to the facts of the above recognition, the plaintiff prepared a sales contract with 00 won when he purchased the apartment of this case with the introduction of KimA, but on the other hand, the plaintiff purchased the apartment of this case in the form of acquiring the debt of this case, not with all the above 00 won, and it is reasonable to see the above amount as the actual transaction price of the apartment of this case, since it is 00 won since the plaintiff actually performed the debt of this case, and it is reasonable to see that the above amount is the actual transaction price of the apartment of this case. Thus, the plaintiff's assertion

(2) The due amount of tax

If the acquisition value of the apartment of this case is deemed 000 won, the reasonable tax amount shall be 000 won as shown in the attached Form.

D. Sub-committee

Therefore, the part which exceeds the above legitimate tax amount among the disposition of this case is unlawful, and the remainder is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.