Cho High Court Decision 2009J397 ( November 02, 2009)

Actual transaction price of transferred house

Although the tax authorities asserted that the transfer value verified by the tax authorities was excessive, it is insufficient to recognize it according to the evidence and testimony submitted.

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 6,635,510 against the Plaintiff on June 2, 2009 shall be revoked.

1. Details of the disposition;

A. On June 12, 2002, the Plaintiff was awarded a successful bid for the first floor No. 103 of Dongjak-gu Seoul Metropolitan Government 212-101 (hereinafter “instant housing”) in the auction procedure and completed the registration of ownership transfer on the 26th day of the same month. The Plaintiff transferred the instant housing to Lee Dong-A, and completed the registration of ownership transfer on the 14th day of the same month on June 26, 2002.

B. On June 25, 2002, the Plaintiff reported the transfer income tax on June 25, 2002, and reported that there was no transfer income tax to pay the transfer value and acquisition value based on the actual transaction value of the instant housing as 96.5 million won, respectively.

C. However, on June 2, 2009, the Defendant deemed the transfer value based on the actual transaction price of the instant housing as KRW 113 million, and rendered the instant disposition that corrected and notified the Plaintiff of KRW 6,635,510 for the transfer income tax reverted to the year 2002.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, 7, Eul evidence 2, Eul evidence 7-1, Eul evidence 7-1, the purport of the whole pleadings

2. Whether the disposition is proper; and

A. The plaintiff's principal

Despite the fact that the transfer value of the instant house was 96.5 million won, the instant disposition that the Defendant considered the transfer value of the instant house as 11.3 million won is unlawful.

B. Determination

(1) In light of the following circumstances, Gap evidence Nos. 4, which corresponds to the fact that the plaintiff's transfer price of the house of this case is 96.5 million won, cannot be trusted in light of the following circumstances, and Eul evidence Nos. 3, 5, 9, and 10 of Eul evidence Nos. 10 and witness testimony No. 10 of this case, and the purport of the whole pleadings of this case as a whole, and evidence No. 11-4 of this case is insufficient to acknowledge it.

(A) At the time of filing a report on the transfer income tax of this case, the Plaintiff submitted a real estate sales contract (No. 4) stating that the sales price of the instant house was KRW 96.5 million. However, the Plaintiff is the person who was prepared to report the transfer income tax rather than the original sales contract. If it is not for the purpose of reducing the burden of the transfer income tax, it appears that there is no reason to prepare a separate sales contract for the purpose of reporting the transfer income tax, and the Plaintiff was unable to present the initial sales contract. The Plaintiff transferred the instant house to the Plaintiff on June 24, 2002, but transferred it to the Plaintiff on November 10, 2003, and thus, it is highly likely that the Plaintiff again leased the instant house from the Plaintiff at the time of transferring the instant house. Rather, the Plaintiff did not state such content in the above real estate sales contract (Evidence No. 4) and rather stated the lease contract (Evidence No. 500,000,000 won) in the real estate sales contract of this case.

(B) ThisA consistently states to the effect that the Plaintiff purchased the instant house from the Plaintiff at KRW 113 million, and the Plaintiff had been able to rent KRW 8 million out of the purchase price to the Plaintiff, and thereafter, the Plaintiff was able to pay KRW 8 million to the Plaintiff by entering another person as the lessee and the Plaintiff. In light of the content recognized in the foregoing (A), the statement is credibility.

(2) Therefore, the Defendant’s instant disposition that deemed the transfer value of the instant housing as KRW 113 million is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.