Seoul Administrative Court 2010Gudan25452 ( December 09, 2011)

Seocho 2010west 2160 ( October 24, 2012)

There is no ground to acknowledge that the construction cost has been paid.

The disposition imposing capital gains tax is legitimate because it is difficult to recognize the fact that the construction cost has been paid for the purpose of the change, improvement, convenience of use, etc. of land, and the size and transfer value of land in civil litigation becomes final and conclusive.

Article 97 of the Income Tax Act

Article 96 of the Income Tax Act

2012Nu1299 Revocation of disposition to impose capital gains tax

XX

Head of the District Tax Office

Seoul Administrative Court Decision 2010Gudan25452 decided December 9, 2011

August 23, 2012

August 30, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's imposition of KRW 000 of the transfer income tax belonging to the year 2007 which was made on December 6, 2009 against the plaintiff and KRW 000 of the transfer income tax belonging to the year 2008 which was made on July 5, 2010 shall be revoked.

1. Quotation of the reasons for the judgment of the first instance;

The court's reasoning for this decision is as follows: ① among the reasons for the judgment of the court of first instance, ② The plaintiff, among the reasons for the judgment of the court of first instance, transferred 10-11 square meters of forest land 00-19, 000-22 1,142 square meters of the same Ri, and 00-34 forest land 1,192 square meters of the same Ri on January 26, 2004, transferred on January 8, 2008; ② the part of "No. 419 square meters of forest land 00-19, 00-222 of the same Ri (former forest land 1,710-24); ② The plaintiff's share of the above land 200-34 square meters of the same Ri (excluding previous forest land 200-24), and the part of the above 8-1,784 square meters of forest land / 200-1, 206.

2. Additional determination

A. The plaintiff's assertion

(1) The Plaintiff’s husband had infrastructure, such as the road on which penture can be sold through capital expenditure with respect to the land of this case (hereinafter “the instant land”). Although the Plaintiff’s husband’s testimony by the witness BaB of the first instance trial can only recognize construction expenses equivalent to the capital expenditure on the instant land, the instant disposition of imposition 1 and 2, which did not deduct necessary expenses, such as the above construction expenses, from the transfer value of the instant land, is unlawful.

(2) Although the Plaintiff transferred only the instant land to Gangseo on January 8, 2008, the Defendant was in violation of the law of calculating the area subject to transfer of the instant land differently from the area actually transferred by the Plaintiff, and thus, the said disposition should be revoked.

B. Determination

(1) As to the assertion of necessary expense deduction

Even if all evidence submitted by the Plaintiff and the circumstances asserted additionally in this court are considered, it is insufficient to recognize that the Plaintiff spent a total of KRW 000 won for the purpose of altering, improving, or using the land in this case as alleged, and there is no other objective evidence to acknowledge this otherwise, the Plaintiff’s allegation in this part is not acceptable.

(2) As to the allegation of illegality regarding the second disposition of this case

The facts that the plaintiff transferred only the land in this case to Gangnam 208 are as shown above. However, according to Gap evidence Nos. 8 and Eul evidence Nos. 15, and the purport of the whole pleadings as to ① purchase of the plaintiff's share in the above 000-19 forest land and the above 000-34 forest from Gangnam 2000 won for the reasons that Gangwon purchased the plaintiff's share in the above 000-19 forest and the above 000-22 road and the above 000-394 forest, the Seoul Central District Court was sentenced to a favorable judgment on Oct. 24, 2007 against the plaintiff on Oct. 24, 2007. ② The appellate court proceeded with the plaintiff's appeal against the above judgment on Jun. 23, 2009.

In the same way, in imposing the second disposition of this case, it is difficult to conclude that the Defendant erred in calculating the Plaintiff’s transfer income tax for the said 000-22 road and the said 000-34 forest land on January 8, 2008 with respect to the Plaintiff’s Gangwon-A in accordance with the sales contract on January 8, 208. Moreover, even if the Defendant mistakenly calculated the transfer area of the pertinent land, such circumstance does not directly affect directly recognizing the transfer value of the pertinent land as KRW 00,00, which is the purchase price claimed by the said Gangwon-do. Thus, it cannot be deemed that the Defendant erred in calculating the transfer income tax for the year 2008 against the Plaintiff by deeming the Plaintiff’s transfer value of the instant land as KRW 00.

Ultimately, this part of the Plaintiff’s assertion alone cannot be deemed to have any error in the imposition disposition 2 of this case, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s assertion on this part based on a different premise is without merit without further determination as to the remainder.

3. Conclusion

Therefore, the first instance judgment dismissing the Plaintiff’s claim of this case is justifiable, and the Plaintiff’s appeal is dismissed.