early 2010 Heavy0876 (2010.06.01)

A disposition that is imposed on the basis of a construction contract agreement is legitimate;

It cannot be said that it is against the principle of equality to require the plaintiff to calculate transfer income tax on the basis of the statement of construction contract, etc. and to prove the expenses of construction expenses, etc. that he/she is fright

2010Guhap12386 Revocation of Disposition of Imposing capital gains tax

XX

O Head of tax office

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 73,056,790 on November 10, 2009 to the Plaintiff is revoked (it appears that January 10, 2010 appears to be a clerical error on November 10, 2009, as stated in the written complaint’s purport).

1. Details of the disposition;

A. On February 13, 1996, the Plaintiff purchased a multi-family house (hereinafter referred to as “instant house”) on the ground of the said land on September 23, 1996, from the Korea Water Resources Corporation at BB, 1589-16 site 212.2 square meters (hereinafter referred to as “instant land”). Around September 23, 1996, the Plaintiff newly built a multi-family house on the ground of the said land.

B. After March 18, 2008, the Plaintiff transferred the instant land and housing in KRW 380,000,000, and on March 31, 2009, the Plaintiff voluntarily filed a capital gains tax declaration with the Defendant on the condition that the transfer value was 380,000,000,000,000, in addition to the “detailed statement of construction cost” and “maintenance details of maintenance and management expenses,” and “376,042,680, and the tax rate was 50% of the two houses per household.”

C. However, the Defendant determined that the above specifications of construction cost and maintenance cost cannot be deemed as evidentiary documents to prove the acquisition value or necessary expenses, and confirmed that the aggregate amount was KRW 202,30,000 upon finding out the building design contract, building construction supervision contract, and construction cost contract submitted by the Plaintiff after going through an investigation. Based on this, the Defendant denied the deduction of necessary expenses such as the acquisition value previously reported by the Plaintiff and imposed capital gains tax of KRW 73,056,790 on the Plaintiff on November 10, 2009 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on March 5, 2010, but the said claim was dismissed on June 1, 2010.

Facts that there is no dispute over the basis of recognition, Gap evidence 1 through 3, Eul evidence 1 through 3 (including paper numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Defendant’s written contract for construction work that is the basis for calculation of capital gains tax is contrary to the common sense to collect value-added tax from the contractor under the contract that is inconsistent with the proportional relationship between the value-added tax and the contract that is not registered as a business operator. Considering such circumstances, the above contract cannot be recognized as authentic, and thus, calculating capital gains tax is contrary to the underlying taxation principle, and the calculation of capital gains tax is contrary to the principle of equality, as it requires the Plaintiff to prove the amount of actual transaction, and thus, the Defendant itself is not liable for such

In addition, if the actual necessary expenses borne by the Plaintiff are not verified, the necessary expenses should be calculated based on the conversion value, but such measures should not be taken. Accordingly, the Defendant’s disposition of this case is unlawful.

B. Relevant statutes

As shown in the attached Form.

C. Determination

(1) First, taking full account of the following circumstances acknowledged by the Defendant’s assertion related to the authenticity of the construction contract, the background of the above disposition, and the evidence as seen earlier, that is, the above contract was submitted by the Plaintiff himself to the Sistition viewing who is the permission-granting authority, to obtain a notice of acquisition tax and registration tax regarding the registration of initial ownership of the land and housing in this case, and each statement submitted by the Plaintiff as documentary evidence is written only the construction type and construction cost in the absence of the seal of the maker, etc., and it is difficult to believe that the Plaintiff paid the said money in light of the form and content of the statement. On the other hand, it is difficult to believe that the above contract is authentic in the above contract, and it cannot be deemed that the Plaintiff’s acquisition value is in violation of the basic taxation principle by recognizing the authenticity of the contract, and that there is no defect in the form, such as the seal and seal of each party to the contract, etc. on the basis of the Plaintiff’s assertion that the value-added tax or the contractor did not register its business.

(2) In addition, if the facts alleged in the facts requiring taxation are revealed in light of the empirical rule in the specific litigation process, it cannot be readily concluded that the other party is an illegal disposition that fails to meet the requirements for taxation (see Supreme Court Decision 2002Du6392, Nov. 13, 2002). Furthermore, the burden of proving the tax base on which the tax is based is located in the taxation authority. Since the tax base is calculated by deducting necessary expenses from the revenue, the tax authority must bear the burden of proving revenues and necessary expenses in principle. However, since most of the facts generated as well as necessary expenses are located in the area under the control of the taxpayer, and the tax authority is difficult to prove them, it cannot be deemed that it is reasonable to prove that the other party is liable for taxation by taking into account the difficulty of proving construction contract or equity between the parties concerned, etc., and that it conforms with the concept of each taxpayer in the previous construction contract and the maintenance and management of the construction cost, etc. (see Supreme Court Decision 2002Du16786, Feb. 26, 20004).

(3) Furthermore, according to Articles 97 and 114 of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008), in the case of transfer value, acquisition value, or necessary expenses, if it is impossible to recognize or confirm the actual transaction value, it may be calculated based on the conversion value. As seen earlier, the Defendant’s confirmation of the actual transaction value due to the above construction contract, etc., and then calculated the transfer income tax. Thus, the Plaintiff’s assertion that the deduction of necessary expenses based on the conversion value is without merit, such as requesting the deduction of necessary expenses.

D. Sub-committee

Therefore, the disposition of this case is legitimate, and the plaintiff's assertion against this is without merit.

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.