Tax Tribunal 2012west 3993

It is reasonable to deem that the Plaintiff sold each of the instant real estate instead of mediating the sale and purchase of each of the instant real estate.

In full view of the fact that the Plaintiff sold the instant real estate to Gangwon-B in the Seoul Central District Court Decision 2011Gahap10689, it is reasonable to deem that the Plaintiff sold each of the instant real estate instead of acting as an intermediary for the sale of each of the instant real estate.

2013Guhap6817 Revocation of Disposition of Imposing capital gains tax

GuAA

head of Dongjak-gu Tax Office

August 30, 2013

November 8, 2013

1. On February 1, 2012, the Defendant’s imposition of the capital gains tax for the Plaintiff on February 1, 2005, exceeding the KRW OOO in the imposition of the capital gains tax for the year 2005, and the imposition of the KRW OO in excess of the KRW OO in the imposition of the capital gains tax for the year 207.

2. All remaining claims of the Plaintiff are dismissed.

3. Of the costs of lawsuit, 4/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax belonging to the year 2005 against the Plaintiff on February 1, 2012 is revoked. The Defendant’s disposition of imposition of capital gains tax belonging to the year 2006, capital gains tax belonging to the year 2006, and capital gains tax belonging to the year 2007 is revoked.

1. Details of the disposition;

"A. The defendant, after conducting an investigation on the plaintiff, conducted an unregistered resale of the real estate listed in the separate sheet from 2005 to 2007 (hereinafter excluding the real estate Nos. 1, 2, and 8 among the above real estate, the remaining real estate is referred to as "each real estate of this case," and the unregistered real estate is specified by the sequence)," and on February 1, 2012, the defendant filed an objection against the plaintiff on April 27, 201 to 2000 won for correction of the capital gains tax for 206, the capital gains tax for 2007, and the capital gains tax for 200,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff is not a sales broker of each of the instant real estate, but a sales broker of each of the instant real estate. Therefore, the Plaintiff cannot impose capital gains tax on the Plaintiff.

2) The Defendant included the Plaintiff’s non-transferable real estate in the transfer subject matter, and calculated the acquisition value of real estate excessively or excessively.

A) The acquisition value of the instant real estate 3, 4, 6, 9, and 14 is an OOO. The acquisition value of the instant real estate 14 was calculated as the acquisition value of the instant real estate as the OOO, the acquisition value of the instant 4, 6 real estate as the OO, and the acquisition value of the instant 3, 9, and 13 real estate as the OO.

B) The transfer value of the instant 3 real estate includes the KRW OO in the transfer value of the instant 3 real estate. Since the compensation cannot be paid upon the amendment of the ordinance, the compensation should be deducted from the transfer value of the instant 3 real estate.

C) Since the Plaintiff returned the KRW OO to the purchaser of the instant 6 real estate, the KRW OO shall be deducted from the transfer value of the instant 6 real estate.

D) The transfer value of the instant real estate 13 is OO won, and the transfer value of the instant real estate 13 was calculated as OO won.

E) Since the Plaintiff was sentenced to the purport that the purchase price should be returned to the purchaser of the instant real estate 12, 14, and 15, the instant real estate should be excluded from the transfer subject matter.

3) Since the instant real estate 5, 14, 15 is an unregistered building that cannot be registered, the Defendant applied the tax rate to 70% by regarding the transfer of unregistered assets, even though it does not constitute unregistered assets.

B. Facts of recognition

"1) On June 23, 2010, the Plaintiff was indicted on charges of violating the Act on Special Measures for the Registration of Real Estate, etc. on October 7, 201, and sold the instant real estate to Gangwon District Court 201Da1267, 1415, 242, 283, and 101, which were sentenced to one year imprisonment (hereinafter referred to as "the instant judgment") for the following reasons: "The Plaintiff was sentenced to 3,5, 7, 9, and 12 unregistered real estate" (hereinafter referred to as "the instant judgment"); "2), "BB and 5, on October 12, 201, the Plaintiff moved the instant real estate into the Seoul Western District Court 200Da1267, 1415, 2415, 201, and the Plaintiff asserted that the right to occupy the instant real estate was not available, and thus, the Seoul High Court 201Na2181, 2011.

C. Determination

1) Determination on the first argument

The plaintiff asserts that the transfer income tax may not be imposed on the plaintiff, since the plaintiff arranged the sale of each real estate of this case, not the sale of each real estate of this case.

In light of the following circumstances, i.e., ① the Plaintiff’s resale of real estate in this case on the grounds of the sales contract, 5, 7, 7, 9, and 12 concluded between the Plaintiff, KimE, OF, OF, and the Plaintiff’s statement, etc. in the relevant judgment: ② the Plaintiff was a party to the instant case and prepared a sales contract (Evidence A No. 1-2, 3, 9, 21, 22), stating that the Plaintiff would sell the real estate in this case to GG, JG, JH, Kim II, Kim JJ, Kim JJ, 13, 14, and 14; ③ the Seoul Central District Court Decision 201Ga10689 decided that the Plaintiff sold the real estate in this case to GG, 201, 10689 decided that each of the instant real estate was not a broker, and the Plaintiff’s assertion that each of the instant real estate in this case was without merit.

2) Determination on the second argument

A) The Plaintiff asserts that the acquisition value of the real estate of this case 3, 4, 6, 9, and 14 is OO, and that the acquisition value of the real estate of this case 14 is OO, the acquisition value of the real estate of this case 4, 6 real estate of this case is OO, and the acquisition value of the real estate of this case 3, 9, and 13 is OO.

According to the evidence evidence Nos. 8 through 10, it is recognized that the Plaintiff prepared a sales contract with the purport that the Plaintiff would purchase the instant 3,10,11 real estate from KimE for each OOE. However, the acquisition price of the instant 3,9, or 12 real estate from KimE in the instant judgment, i.e., the following circumstances that can be known by adding the aforementioned evidence and the overall purport of the pleadings, i.e., the fact that the Plaintiff purchased the instant 3,9, or 12 real estate from KimE for each OO in the instant judgment, and ② the fact that the Plaintiff purchased the real estate from OOO in the appellate brief filed by the Seoul Western District Court 201No1069, the acquisition price of the real estate from 3,9, or 13 real estate from OOO in the appellate brief filed by the Plaintiff in Seoul Western District Court 201No1069, should be deemed OO.

Meanwhile, the Plaintiff did not submit evidence to prove that the acquisition value of real estate 4, 6, and 14 of the instant case was OOO, but there is no evidence to prove that the acquisition value of real estate 14 of the instant case was OOO, the acquisition value of real estate 4, 6, and 6 of the instant disposition was OOO. Thus, the part regarding the transfer of real estate 4, 6, and 14 of the instant disposition should be revoked. Accordingly, the Plaintiff’s assertion on this part is with merit within the scope of the above recognition.

B) The Plaintiff asserts that the amount of compensation should be deducted from the transfer value of the instant 3 real estate since the amount of compensation is included in the KRW 00,000,000 for the transfer value of the instant 3 real estate.

According to the statement Nos. 1-1, "S. 1-1, the plaintiff sold the real estate of this case to this KR, and exchanged it in cash at 33 level apartment units constructed by the Urban Development Corporation while selling the real estate of this case to OOOO, and if there is a defect. It is recognized that there is a special agreement that the compensation would bring about OOOO won among OOOO members, but it is difficult to find that the compensation is included in the transfer value of the real estate of this case 3 OOO won, and there is no evidence to prove that the plaintiff returned OOO won to this KR. Accordingly, the plaintiff asserts that the transfer value of the real estate of this case 13 is calculated as OO won, and that the transfer value of the real estate of this case 13 is calculated as OO won.

In light of the following circumstances, Gap evidence Nos. 22, Eul evidence Nos. 10 and 13, which can be seen as adding the whole purport of the pleadings, i.e., the plaintiff sold the real estate of this case to KimJ around Nov. 19, 207, and the KimJ stated that the above real estate was acquired from OOO Won in the register of the real estate of this case 13 real estate; ② the publicly announced price of the real estate of this case 13 real estate is as of Jan. 1, 2007, and as of Jan. 1, 2008, it appears that the plaintiff did not sell the above real estate at a price lower than the publicly announced price of the above real estate, the transfer price of the real estate of this case 13 real estate should be deemed as OO won. Therefore, the plaintiff's assertion that this part is without merit.

D) The Plaintiff asserted that the real estate of this case 12,15 should be excluded from the object of transfer, since the Plaintiff was sentenced to the return of the purchase price to the purchaser of the real estate of this case 12,15.

The plaintiff was sentenced to KimD to the effect that he would return the sales price of the real estate of this case 12 and the sales price of the real estate of this case 15 to KangB. Thus, it is reasonable to view that the real estate of this case 12 and 15 should be excluded from the transfer. Accordingly, the plaintiff's assertion on this part is with merit.

3) Judgment on the third argument

The plaintiff asserts that although the real estate of this case 5, 14, and 15 is an unregistered building that cannot be registered, the defendant applied the tax rate to 70% by regarding the transfer of unregistered assets of this case 5, 14, and 15.

According to the statement of No. 8-1 of the evidence No. 8-1, since the existence of the registry of the real estate No. 5 of this case is recognized, the real estate No. 5 of this case cannot be deemed as an unregistered real estate. In addition, according to the statement No. 1-3 of the evidence No. 1-3, the defendant does not regard the transfer of real estate No. 14, 15 of this case as the transfer of unregistered assets, and rather regard the plaintiff as a three-household for one household, and thus, the tax rate of 60% is applied to the transfer of each real estate. Therefore, this part of the plaintiff's assertion

(iv)the calculation of a reasonable amount of tax;

In accordance with the above determination, where part of the instant disposition was revoked due to the transfer of real estate in 4, 6, 12, 14, and 15, the transfer income tax for the year 2005 for which the Plaintiff should pay shall be the OOO(the original unit cut, the same shall apply hereinafter), and the transfer income tax for the year 2007 shall be the OO. Therefore, the portion exceeding the OOO in the disposition of imposition of the transfer income tax for the year 2005 and the portion exceeding the OOOO out of the transfer income tax for the year 207 for the transfer income tax for the year 207 shall be revoked as unlawful.

Note 8-9 of the Court Decision

3. Conclusion

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