Changwon District Court-2014-Gu Joint-21842 (2015.06.02)

The transfer value shall be deducted from the transfer value because the loan and the construction price not related to the transaction have been partially included in the transfer value.

Since the transfer value includes loans and construction cost not related to the sale and purchase of the instant real estate, the former owner’s disposition imposing capital gains tax on the Plaintiff by deeming the total amount paid to the Plaintiff as the transfer value.

Article 96 of the Income Tax Act

(C)The revocation of the disposition to impose capital gains tax, etc.

AA

○ Head of tax office

Changwon District Court Decision 2014Guhap21842 Decided June 2, 2015

August 31, 2016

September 28, 2016

1.The judgment of the first instance shall be modified as follows:

A. On October 1, 2013, the Defendant’s imposition of capital gains tax of KRW 00,000,000 (including additional tax) for the Plaintiff for the year 2011 shall be revoked in excess of KRW 00,00,000 (this tax is KRW 0,000,000, additional tax is KRW 0,000,000).

B. The plaintiff's remaining claims are dismissed.

2. 10% of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Details of the disposition;

The court's explanation on this part is based on Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, since the reasoning of the judgment of the court of first instance is the same as that of Paragraph 1 of the same Article.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff’s disposal of KRW 00,000,000, which was paid to the Plaintiff’s wife from BB on January 6, 2011, includes KRW 000,000,000 for loans not paid by DD from BB, and KRW 00,000,00 for construction accounts receivable that the Plaintiff’s husband EEE is the representative director of BB, and KRW 00,000,000 for construction accounts that were not paid by BB’s husband EE from FF (hereinafter “FF”). Thus, the transfer value of the instant shares is KRW 00,000,000 for acquisition value of the instant shares was also KRW 00,000,00 for real estate invested by the Plaintiff at the time of acquisition of the instant shares + the Defendant’s disposal of the instant shares based on the premise that the Plaintiff’s disposal of the instant shares was unlawful for the Plaintiff’s transfer of KRW 000,000,000 for other shares.

(b) Fact of recognition;

1) The husband EE (any transaction made in the name of BB as seen below) of BB offered investment in short of the amount of money due to the lack of money in the real estate auction process of the Plaintiff’s fraudulent CCC (the acquisition of shares in this case, related agreements and contracts, transfer of the shares in this case, lease of the Plaintiff’s ancillary DD name is limited to that of the Plaintiff and DDD on behalf of the Plaintiff), while proposing investment of 00,000,000 won in investment, the amount of 00% of the amount of cCC’s FF (E was substantially operating FF) and the amount of loans to DDB will also be adjusted together with the loan claims against the Corporation’s outstanding amount of money due.

2) According to the CCC’s response to the above proposal, the Plaintiff, BB, and GG (hereinafter collectively referred to as the “Plaintiff, etc.”) jointly acquired the instant real estate through a public sale procedure on April 24, 2009, and each of them offered a public sale price of KRW 00,000, BB00,000, GG00, and the instant real estate as security.

3) On the other hand, on July 16, 2010, the Plaintiff et al. drafted a business agreement to operate the HH center from the instant real estate, and the main contents thereof are as follows.

Representative Enterprise BB (Share 00%)

(00%) Equity interest (0%)

GG (00% of shares)

3 above equity investors enter into and implement an agreement on business with respect to the operation of the HH Center as follows:

Article 4:Persons selected as Representative Business Entities shall pay a certain amount of profit to two equity investors at the rate of equity investment to 30th day of each month.

Distribution of Business Profits: 00% of equity (payment of KRW 0 million per month)

00% of shares (payment of KRW 0 million per month)

00% of shares (payment of KRW 0 million per month)

Article 5:Payment Period of Operating Profits above shall, in principle, be paid monthly from August 1, 2010 to sale and purchase. (hereinafter omitted)

Article 7:The real estate sale price shall not be absolutely sold not exceeding KRW 0 billion determined by three agreements.

(F) A person who wishes to purchase, among three equity investors, three or more equity investors, after deducting the cost of introduction, may also be assigned by applying the above amount. (Last)

4) On April 24, 2009, with respect to the instant real estate, the establishment registration of a mortgage was completed near ○○ Bank, the debtor, the plaintiff, the debtor, the maximum debt amount of KRW 0,000,000 (hereinafter “the first loan”); on February 19, 2010, the establishment registration of a mortgage was cancelled on April 24, 2009; on April 24, 2009, the mortgagee, the debtor, the plaintiff, the debtor, and the maximum debt amount of KRW 2,145,000 was completed (hereinafter “the second loan”); on February 19, 2010, the establishment registration of a mortgage on February 19, 201, which was cancelled on the same day as the cancellation date of the registration of a mortgage on April 16, 2016.

5) BB acquired the instant shares on January 6, 201, repaid the total amount of KRW 00,000,000 to the account under the Plaintiff’s name. On the same day, BB transferred KRW 00,000,000 among the instant real estate (hereinafter “GG’s shares”) to GGG 00,000, and transferred KRW 00,000 to GG 10,000 as evidence [the GG 10,000,000 shares transfer of KRW 10,000,000,000, which were 00,000, were 00,000,000,000,000,0000,000 were 0,000,000,000,000,000,000,000,000,000,00,00,00,00,00,00G evidence 2G 1,0.

6) On the other hand, on April 6, 2006, written the FF’s statement of confirmation of the balance of the construction deposit in the FF’s name, stating that “The balance of the remainder remaining in the ○○○○ apartment site construction (00,000,000) and the said amount remains in the ○○○○○○ apartment site construction (0,000,000), so as to prepare a written confirmation, the BB registered DD as a joint business proprietor of JJ on August 2007, with respect to the operation of the JJ at ○○○○○○○dong-dong, ○○○○○○○○○○○○○○○○○ (DD) in borrowing KRW 00,00,000 from the DD and as a guarantee measure for the said loan.

C. Determination

1) Determination on the transfer value of the instant share

A) Each sales contract (A. 5 and 7) regarding the transfer value of the instant share and the transfer value of the shares of GG exists, but the transfer value of the instant share and the transfer value of the shares of GG are different from the actual transfer value under the said sales contract.

On the other hand, the director of the ○○ Tax Office, after purchasing each of the instant shares and the GG shares, determined the transfer value of the instant shares as KRW 0,000,000 on the basis of the said taxation data notified by the director of the ○○ Tax Office by verifying only the BB’s statement, etc. without separately confirming the Plaintiff with respect to the transfer of the instant shares to KB. The Defendant calculated the transfer value of the instant shares as KRW 0,000,000 on the basis of the said taxation data.

B) However, the Plaintiff asserts to the effect that the amount of KRW 000,000,000,000, which was remitted from BB, is the respective repayment amount of the CCC’s outstanding loan claims and DD’s loan claims, and thus, this paper examines this issue.

Taking into account the following circumstances, each of the aforementioned evidence and evidence Nos. 18, 21, 23, 24, and 26, and the testimony of the witness CCC of the first instance trial, it is reasonable to view that BB included KRW 00,000,000,000, which was transferred by CCC to the Plaintiff on January 6, 201, and the loan balance of DD amount of KRW 00,000,000,000, in total.

(1) The reason why the Plaintiff invested in the instant real estate auction procedure was that EE, who led the public sale of the instant real estate, intended to arrange the Plaintiff’s agent for CCC’s outstanding construction accounts receivable, and the loan claims of DD, thereby CCC invested in BB and GG in the instant real estate auction procedure.

(2) In each of the above legal acts between the Plaintiff and BB, DD and BB (acquisition, transfer, lease, etc. of the instant shares), the CCC dealt with it in the form of acting for and on behalf of the Plaintiff, and EE dealt with it in the name of BB.

(3) Although the parties to the transaction have different parts, in light of the fact that the aforementioned investment circumstances and EEE practically engaged in legal acts in the name of BB, there is sufficient possibility that the repayment of loan claims against DD’s BB at the time of the instant transfer of equity, and the CCC’s construction outstanding bonds will also become the same.

(4) In detail, the Plaintiff did not receive 00,000,000,000 won from the loan of DoB at the time of its investment in the real estate auction procedure. However, the Plaintiff asserted that the loan of DoB was 00,000,000 won from the account of DoB as of the time of the transfer of DoB’s interest in the loan of DoB, and that the transfer of DoB was 00,000,000,000 won (the first 0,000,000,000 won was corrected) and there is no inconsistency in the arguments. Accordingly, it is reasonable to view that DoB was 00,000,000 won from the loan of DoB as the transfer of DoB’s interest in B0,000,000 won from the transfer of DoB’s interest in the transfer of DoB’s loan of DoB’s interest in the transfer of DoB’s share.

(5) The witness EE’s testimony on this portion is difficult to believe, in light of the fact that the CCC’s claim for the outstanding construction cost is KRW 00,000,000 on April 6, 2006, the document confirming the outstanding construction cost (Evidence 1-1-1) and the witness EE testified as payment for the outstanding construction cost, but the document was not submitted, and the EE has a interest in the transfer value of the instant shares as seen above, and thus it cannot be ruled out the possibility of false statement. In addition, the witness EE’s testimony on this portion is difficult to believe. In light of the circumstance that accepting the purport of the EE witness’s testimony on this portion, “FF does not have any obligation to pay the outstanding construction cost to CCC even after the transfer of the instant shares,” it is reasonable to view that the aforementioned outstanding construction cost is included in KRW 00,000,000 and the outstanding construction cost as 00,000.

(6) At the time of the transfer of the instant shares, Eul evidence Nos. 7 written on the premise that the real estate value of the instant real estate was KRW 0,00,000,000 was 0,000, not only was prepared in its own name, but also was not admitted as evidence. Even if the authenticity is recognized, Eul evidence Nos. 7 cannot be used as evidence. Even if the authenticity is acknowledged, with respect to the shares of GGG transferred along with the instant shares, Eul evidence Nos. 7 was transferred to GG as the transfer value of the shares of GG (= KRW 00,000,000,000,000, + KRW 000,000,000, which was transferred from CCC to the account under the name of GG. In light of the fact that the testimony by the witness of the judgment at the time of the transfer of the shares of the instant case, the testimony of GGG was not transferred to the GG.

C) Therefore, the transfer value of the instant share is KRW 000,000,000 (=the transfer value of the instant share for the secondary loan + KRW 000,000,000 + KRW 000,000,000 - KRW 000,000).

2) Determination on the acquisition value of the instant share

The Plaintiff asserted that the acquisition value of the instant shares should include the amount of debt of 00,000,000 won (i.e., secondary loans of 00,000,000 x 00/100) that the Plaintiff had borne as security at the time of acquiring the instant shares, but as long as it is unclear whether the total amount of the secondary loans has been actually used for the acquisition of the instant real estate, it is reasonable to calculate the acquisition value of the instant shares based on the Plaintiff’s actual investment amount, the portion equivalent to the Plaintiff’s shares out of the first loans used as the proceeds of public sale of the instant real estate at the time of acquiring the instant shares, and the portion equivalent to the Plaintiff’s shares out of necessary expenses. Accordingly, the Plaintiff

3) Calculation of a reasonable amount of capital gains tax

A) Determination of the legality of a disposition in a lawsuit seeking revocation of taxation is based on whether it exceeds a legitimate tax amount. The parties concerned may submit objective tax bases and materials supporting the tax amount until the closing of arguments in the fact-finding court, and when computing a legitimate tax amount to be imposed lawfully based on such materials, only the part exceeding the reasonable tax amount should be revoked (see Supreme Court Decision 94Nu13527, Apr. 28, 1995).

B) In light of the above legal principles, the transfer margin of the instant shares is 00,000,000 won (i.e., the transfer value of the instant shares 00,000,000 won - the acquisition value of the instant shares 00,000,000), and the principal tax of the transfer income tax for the year 2011 is 0,000,000 won (=tax base of 00,000,0000 - the basic deduction of transfer income - the basic deduction of transfer income) 】 tax rate of 40%). Additional tax is 0,00,000,000 won (i.e., the additional tax without filing a return + the additional tax of 0,000,0000 + the additional tax of 0,0000 additional tax of 0,0000 additional tax of 0,0000 won. Ultimately, the portion of the instant disposition exceeds the above amount of transfer income tax (including additional tax).

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, it is so decided that the judgment of the court of first instance will be modified as above. It is so decided as per Disposition.