National High Court Decision 1995J0431 ( November 3, 1995)

Transfer

Dismissal

The acquisition value of land is reasonable to determine the amount entered in the seal of approval contract as the actual transaction value unless there is any other counter-proof, so the disposition of the disposition agency is legitimate.

Article 23 of the Income Tax Act

I dismiss the appeal.

1. Facts and outline of disposition;

From June 2, 89.6 to August 14, 89.8, the claimant has transferred the land of 186,068 square meters in forests and fields located outside of OO Ri, 42 lots of land acquired from OOOOO and OOO (excluding the wife and the person in charge of the non-claim) on three occasions, the claimant transferred the land of 186,068 square meters in forests and fields located outside of OO Ri, and 42 lots of land (hereinafter referred to as "contest land").

The disposition agency decided the sale price (acquisition price: 12,30,000, transfer price: 65,000,000) stated in the seal of approval contract as the actual transaction price in calculating the transfer margin based on the actual transaction price after the claimant has made a short-term transfer of the disputed land within one year after its acquisition, and imposed the transfer income tax of 37,641,010 and the same defense tax of 7,528,200 won on the claimant for 89 years.

The claimant appealed against this and filed an appeal on Sep. 9, 94 and the appeal on Nov. 16, 94.

2. Opinions of the applicant and the Commissioner of the National Tax Service;

A. The claimant's assertion

The issue is the land of 0O's original 60 days prior to the purchase and sale of 6O's own land under the name of 50O's 60O's 60's 60's 60's 60's 7's 6's 6's 6's 6's 7's 6's 6's 7's 6's 6's 6's 6's 7's 6's 6's 6's 6's 6's 7's 6's 6's 6's 6's 7's 7's 7's 6's 6's 7's 6's 6's 7's 6's 7's 7's 7's 7''''''''s 60''s 7''''''''''s 60'''''''''''''''''''''''''''s 64''''''''s 6'''''''''''

In the process of arranging complicated registration transfer for tax, the claimant prepared an approval seal contract with the amount different from the actual acquisition price in fact, but when the claimant acquired the disputed land from OO, etc. in consideration of all the data and circumstances, the claimant paid 65,000,000 won as it is by the buyer's OO, etc., it is clear that the actual acquisition price and transfer price are all 65,00,000 won, and the disposition of this case must be revoked.

(b) Opinions of the Commissioner of the National Tax Service;

In this case, the disposition agency imposed a tax on the sale price on the contract of approval by considering it as the actual acquisition and transfer price within a year of short-term transfer, and the claimant asserts that there is no transfer margin by transferring it at the same price as the acquisition price. Even though the registration of the land at issue was submitted respectively, the claimant presents a private contract stating that the acquisition price of the land at issue is 65,000,000 won when filing a request for a request for a retrial, and the request for the approval of the private contract does not seem to have any credibility of the sale price at the time of acquiring the land at issue, even though the registration of the land at issue is submitted at the same price as the acquisition price at the same price.

The claimant presented the transferor's confirmation document and the receipt of KRW 65,00,000 as a supporting document. However, considering that the claimant acquired 21 parcels of forest land under the name of OO, and 3 parcels of forest land under the name of OOO under the name of 19 units of forest land under the name of OO, the claimant's confirmation document and receipt do not prove the real acquisition value asserted by the claimant. Thus, the claimant's request letter of confirmation that he acquired 65,00,000 won and transferred the land at the same amount cannot be accepted, and there is no other error of taxation by deeming the sales price of KRW 12,30,000 under the certificate of approval document submitted by the head of Gun having jurisdiction over the location of real estate as the actual transaction value at the time of acquisition.

3. Hearing and determination

A. Key issue

The propriety of the disposition determined as 12,300,000 won stated in the seal of approval agreement on the acquisition of the land at issue

(b) Related statutes;

The acquisition and transfer value of assets in Articles 23(4) and 45(1)1 of the Income Tax Act, effective at the time of transfer of the land at issue, shall be based on the standard market price at the time of acquisition and transfer: Provided, That where the Presidential Decree prescribes, it shall be based on the actual transaction price of the assets;

Article 170 (4) 2 (c) of the Enforcement Decree of the same Act provides that one of the cases prescribed by the Presidential Decree shall be “in case where a real estate is transferred within one year after the acquisition of the real estate”:

According to the above provisions, the transfer margin can be calculated based on the actual transaction price in the case of acquisition of real estate within one year after acquiring the principle or real estate in the calculation of the standard market price.

C. Facts and determination

In this case, there is no dispute between the disposition agency and the claimant as to the fact that the actual transaction price at the time of transfer is 65,00,000 won at the time of the acquisition and transfer of the key land within one year after the claimant acquired the key land, and that the transfer gains should be calculated on the basis of the actual transaction price at the time of the acquisition and transfer of the key land. However, the disposition agency asserted that the actual transaction price at the time of the acquisition is 12,30,000 won based on the seal of approval contract, and the claimant asserts that it is 65,00,000 won

Unless there are special circumstances, the stamp contract prepared by the parties to the transaction and approved by the head of the Si/Gun, etc. shall be presumed to have been prepared in accordance with the sales contract between the parties, and the fact that the contract was prepared differently from the actual one must be proved by the claimant (see Supreme Court Decision 93Nu2353, Apr. 9, 93).

The claimant acquired the key land in KRW 65,00,000,000: Provided, That the claimant argued that only the approval seal contract was prepared differently from the fact, and the evidence presented the acquisition contract of May 16, 89.

First, it is difficult to believe that the above acquisition contract is stated that the sale price of KRW 65,00,000 is paid in a temporary payment as of the date of the contract, and there is no objective evidence presentation that can be known that the purchase price was received.

Second, if the land at issue was acquired in 65,00,000 won and transferred in 65,000,000 won as the claimant's assertion, the loss from transfer will rather result in the loss from transfer, considering the cost of acquisition (acquisition tax, registration tax, etc.).

Third, in light of the fact that the approval seal contract at the time of the transfer of the key land is prepared at KRW 65,00,000, which is the actual transaction price, but the approval seal contract at the time of the transfer did not state the specific reasons why the sale price was reduced to KRW 12,30,000, it is difficult to accept the request letter that acquired the key land at KRW 65,000,000.

Therefore, unless there is any other counter-proof evidence, the acquisition value of the land at issue is determined as 12,300,000 won stated in the seal of approval contract as the actual transaction price, so there is no reason to request that the disposal of the land at issue is improper.

D. The request for a trial is without merit, and it is so decided as per Disposition in accordance with Articles 81 and 65(1)2 of the Framework Act on National Taxes.