early 201J 2655 ( November 24, 2011)

The disposition calculated based on the conversion value on the ground that the actual transaction price cannot be confirmed at the time of acquisition is legitimate.

The acquisition value cannot be calculated based on the actual transaction price because there is no true sales contract, receipts, and other documentary evidence to verify the actual transaction price at the time of acquisition, and even if the land is divided from the same lot number, the officially assessed individual land price shows a substantial difference and the land category is not the same, so it cannot

Article 97 of the Income Tax Act

2012Guhap939 Revocation of Disposition of Imposing capital gains tax

XX Kim

Deputy Director of the Tax Office

September 7, 2012

September 21, 2012

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 capital gains tax of KRW 000 against the Plaintiff on February 14, 2011 is revoked.

1. Details of the disposition;

A. On February 2, 2005, the Plaintiff acquired from the Dongpo-si Kimpo-si Kimpo-si 000-30 woodland 1,955m2 (hereinafter “the instant woodland”) from the Dongpo-si Kimpo-si, Kimpo-si, and transferred the instant woodland to the Kim Jong-si on December 3, 2009.

B. On February 28, 2010, the Plaintiff filed a preliminary return on the tax base of transfer income with the transfer value of the forest of this case as KRW 000 and the acquisition value of the forest of this case as KRW 000, and paid KRW 000 of transfer income tax for the year 2009.

C. On February 14, 2011, the Defendant issued a correction and notification of KRW 000 of the capital gains tax for the year 2009, on the ground that “The acquisition value of the instant forest land is KRW 000,000 as stated in the sales contract attached when the net KimA reported the capital gains tax (hereinafter “instant disposition”).

D. On April 20, 201, the Plaintiff filed an objection against the above correction and notification with the Defendant, but on May 19, 201, the Plaintiff received a decision of dismissal from the Defendant. On July 19, 2011, the Tax Tribunal filed a request for a trial with respect to the above correction and notification, and on November 24, 2011, it is difficult to recognize 000 won in the transfer price of the sales contract attached when the other party to the transaction filed a report of transfer income tax as the actual transaction price of the forest of this case, and thus, the Plaintiff was determined to rectify the tax base and the amount of tax by converting the acquisition price into the conversion price of the forest of this case. On December 13, 2011, the Defendant deducted the Plaintiff from the conversion price of the forest of this case by calculating the conversion price of the forest of this case as KRW 000,000.

[Ground of recognition] Facts without dispute, Gap 1, 2, 4, 5, Eul 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition shall be revoked on the grounds that there are illegal grounds as follows:

1) On February 2, 2005, the Plaintiff acquired the forest of this case from the deceased KimA, and paid KRW 000 ($000 per square meter) through this BB, and recognized that the deceased KimCC, a dynamic of the deceased KimA, sells the forest of this case to KRW 000,000, the acquisition price of the forest of this case must be calculated as KRW 00,000, the actual transaction price.

2) Even if the acquisition value based on the actual transaction value is not recognized, in cases where the actual transaction value cannot be confirmed, the acquisition value shall be calculated by applying the transaction example method, appraisal value, conversion value, and the estimation method of the standard market price in sequential order. Since the value of the forest in this case, which is divided from the same lot number as the forest in this case, is transferred to Kimpo-si, the 00-17 and 000-26 forest land of this case to Kimpo-si on January 13, 2005 in the amount of KRW 00 (00 per square meter). Thus, the acquisition value of the forest in this case shall be based on the transaction example.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) Purchase, registration, and reporting and payment of transfer income tax of the previous owner of the forest of this case

A) On December 29, 2003, the Plaintiff paid KRW 000 to B, a real estate broker. The B purchased the forest land of this case under the Plaintiff’s name on December 10, 2004, and completed the registration of ownership transfer in the Plaintiff’s name on February 2, 2005 with respect to the forest land of this case. At the time of applying for the registration of ownership transfer, the written contract in which the purchase price is KRW 00 was stated as KRW 00 was attached.

B) On February 2, 2005, GG entered into an agreement with the head of the competent tax office on the transfer value of the instant land at KRW 000 with the transfer value of the instant land, instead of the GG’s burden of the transfer income tax on the transfer of the instant forest. The GG reported and paid the transfer income tax on the transfer of the instant forest at KRW 00 with the transfer value of the instant land at KRW 00.

2) Contract to establish a mortgage, registration and termination

A) Since B acquired the instant forest land from the Plaintiff after acquiring the forest land in this case, 50% of the instant real estate share was asserted as one’s own ownership and demanded the Plaintiff to set up a collateral on the instant forest land in this case’s forest land in this case’s KRW 000,000, and thus, 50% of the instant real estate share was claimed as its own ownership.

B) On April 29, 2005, the Plaintiff and EE agreed to set up a collateral on 330 square meters of the instant forest among the instant forests, and prepared a written contract establishing a collateral on May 2, 2005 regarding the entire forest of this case, and on May 2, 2005, the Plaintiff and EE decided to set up a collateral on the entire forest of this case as 00 won with the maximum debt amount, the Plaintiff, the Plaintiff, and E-mortgage.

C) When EE could not receive a loan from thisB, on August 18, 2009, filed an application for a real estate auction as to the forest land of this case with the Incheon District Court Branch Decision 2009Ma18248 on August 19, 2009, and decided to commence an auction procedure on the 19th of the same month. The Plaintiff repaid EE the above KRW 000 and the cost KRW 000 and terminated the registration of the establishment of a collateral security on the forest of this case on September 17, 2009.

D) Meanwhile, EE did not know the value of the instant forest at the time of the aforementioned contract to establish a mortgage, but concluded a mortgage agreement on the instant forest land’s value of KRW 000,000 per 3.3 square meters, trusting the horses of this case and 330 square meters.

3) Records of recording between the Plaintiff and the deceased KimCC, the birth of the Plaintiff and the deceased KimA

A) On the recording record around July 2009, KimCC transferred the land owned by the deceased KimA to YG to the Plaintiff, and GGG transferred the land owned by the forest of this case to YG by dividing it. At that time, at that time, the land price of the forest of this case, etc. owned was 00 to 000 won per 3.3 square meters, which was transferred to 3.3 square meters per 3 square meters.

B) On the record on February 14, 2011, the record stating that, in calculating the transfer value of the instant forest, etc.’s land to the Plaintiff at KRW 000,000 per 3.3 square meters, the GG reported the pertinent land to GG in lieu of the transfer income tax, but the GG reported it at a price lower than KRW 000 per 3.3 square meters per 3 square meters.

4) A sales contract on January 13, 2005 with respect to the high village of Kimpo-si, 00-17, 26 land 1,000 square meters on the high village of Kimpo-si

A) The above sales contract was submitted as evidence in a lawsuit where there is a dispute over fraudulent transaction in connection with the transaction of real estate in GG.

B) The above sales contract is written as follows: 000 won, seller: H (CG’s wife), buyer: KimD.

C) Meanwhile, each copy of the register of the above 000-17 and 26 land was acquired by the head of HH from the Dong KimA on July 23, 2004, respectively from the above 000-17 forest land and 970 square meters of forest land and 388-26 forest land from the Dong KimA on July 23, 2004, and was registered as being transferred to YG on February 27, 2007.

5) Comparison between the instant forest and the said land 000-17, and 26

A) On April 6, 2004, 200-16 square meters of high village 000-13 forest and 17,475 square meters in Kimpo-si, Kimpo-si were divided into 00-16 forest and 000-17 forest and 1,000 square meters in the same Ri. On June 14, 2004, the above Ri 000-26 forest and 30 square meters in 1,000 square meters in the above Ri 00-17 forest and 1,000 square meters in the above Ri 00-26 forest and 166 square meters in the above Ri 00-16, 166 square meters in each of the above Ri 00-25,713 square meters in each of the above Ri 25, 2004, and on August 25, 2004, the land of this case was divided into 00-25,5713 square meters in each of this case.

B) While the land category of the instant forest is a forest and has no change, the land category of the said 00-17 land was changed from January 17, 2006 to “former”, “Before March 27, 2008,” respectively. The land category of the said 00-26 land was changed from “forest” to “building site” on November 10, 2005, and was combined with the said 00-17 land on March 27, 2008.

C) The details of changes in each individual land price of the forest of this case and the land above 000-17, and 26 are as listed below.

(The following table omitted):

[Ground of recognition] Facts without dispute, Gap 1, 2, 6, 7, 9 through 15, 19 through 22, Eul 2 through 8, testimony of static E and the purport of the whole pleadings

D. Determination

1) Provisions of the statute

According to Articles 96(1), 97(1)1, and 114(7) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009), and Article 176-2(3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009), the acquisition value shall be the actual transaction value required for the acquisition of assets, but where the actual transaction value at the time of acquisition is not verifiable by books or other documentary evidence, the acquisition value shall be determined in the order of transaction example, appraisal value, conversion value, and standard market value.

2) As to the assertion of acquisition value based on the actual transaction price

위 인정사실에서 본 바와 같은 다음의 사정, 즉 ① 원고는 이BB에게 이 사건 임야의 취득 및 등기 등을 전부 위임함으로써 이 사건 임야의 취득에 관한 매매계약서, 영수증 등 증빙서류를 전혀 가지고 있지 아니하고, 이BB가 이 사건 임야를 000원에 매수하였다면서 이 사건 임야에 관한 50%의 지분을 주장함에 따라 이BB의 채권자에게 근저당권설정등기를 마쳐 주는 등으로 스스로도 이 사건 임야의 실지거래가액을 알지 못하고 있는 점, ② 정EE이 이 사건 임야의 가액을 000원 정도로 판단하여 이 사건 임야 중 330㎡에 관하여 근저당권설정계약을 체결하기는 하였으나, 정EE도 이 사건 임야의 시가를 제대로 알지 못하고 단지 시가 에 관한 이BB의 말을 믿었던 것에 불과한 점, ③ 이 사건 임야의 전소유자인 망 김AA의 위임을 받은 임GG이 이 사건 토지의 양도가액을 000원으로 기재하여 이 사건 임야의 양도에 관한 양도소득세를 신고・납부하였고, 원고의 위임을 받은 이KK도 이 사건 임야에 관한 원고 명의의 소유권이전등기 당시 매매대금이 000원인 매매계약서를 첨부한 점, ④ 비록, 원고와 망 김AA의 동생인 김CC 사이에 이 사건 임야를 3.3㎡당 000원에 양도했고 임GG이 양도가액 보다 낮은 가격으로 양도 소득세 신고를 했다는 취지의 대화가 녹취되어 있기는 하나, 매매계약서 등의 객관적 인 자료가 전혀 없는 상황에서 매매계약의 당사자가 아닌 김CC의 녹취된 말만으로는 이 사건 임야의 실지거래가액이 000원(≒ 1,955㎡ ÷ 3.3㎡ x 000원)임을 인정하기 부족한 점 등을 종합해보면, 이 사건 임야의 취득 당시 실지거래가액을 확인할 수 있는 진정한 매매계약서, 영수증 기타 증빙서류 등이 없으므로, 이 사건 임야의 취득가액은 실지거래가액에 의하여 산정할 수 없다.

3) As to the assertion of acquisition value from transaction example

As seen in the above facts, ① the above 00-17 and the above 26 land were submitted as evidence in a lawsuit where there is a dispute over a private transaction in connection with the real estate transaction in GG, and it is difficult to conclude the authenticity of the transaction, such as that the ownership transfer registration is not completed in the purchaser KimD name. ② The above 00-17 and the above 26 land were divided from the same lot number around 2004 and each 00 through 000 won were not different from the above 200-17. The above 2006 officially assessed land price was 3 times or more than the above 00-17 and 26 land were 14 times or more than the above 14 times or 207. The above 206 officially assessed land price was 07.7 times or more than the above 200-1 and the forest land category was 2008.7 times or more."

4) Sub-determination

As seen above, the acquisition value of the forest of this case cannot be calculated based on the actual transaction value and transaction example value, and there is no assertion as to the appraisal value, and therefore, it shall be determined based on the conversion value. There is no reason to believe that there is any illegality in calculating the acquisition value of the forest of this case by the conversion value and in disposing of this case. Accordingly, the disposition of this case made by the defendant on the same premise is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.