Suwon District Court 2008Guhap9516 ( October 19, 2009)

Early High Court Decision 2008J0791 (Law No. 8.26, 2008)

Whether repair costs, such as heating pipes, can be recognized as necessary expenses when calculating gains from transfer.

The amount claimed to have been disbursed as necessary expenses at the time of the transfer of apartment is insufficient to recognize only by the evidence submitted by the plaintiff, and as long as the transfer income tax is calculated by deeming the converted value based on the standard market price as acquisition value by the plaintiff

The contents of the decision shall be the same as attached.

1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The judgment of the first instance shall be revoked. The part of the Defendant’s imposition of capital gains tax of KRW 34,890,778 against the Plaintiff on January 4, 2008, which exceeds KRW 744,035,00, shall be revoked.

1. Acceptance of a judgment of the court of first instance;

The court's reasoning concerning this case is as stated in the reasoning of the judgment of the court of first instance except for the following changes among the judgment of the court of first instance. Thus, the court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

○ Change from 7 Hair 7 up to 6 Hair 8

C. Determination

(1) Determination as to the assertion of acquisition value

According to Article 97 (1) 1(a) and (b) of the former Income Tax Act (amended by Act No. 8144, Dec. 30, 2006; hereinafter the same applies to the former Income Tax Act), 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, the acquisition value may be deemed the acquisition value in the case of transaction example, appraisal value, or conversion value. According to the purport of the items and arguments in subparagraph 3, it is recognized that the Plaintiff purchased the apartment of this case at 16 million won, and it constitutes a case where the actual transaction value is confirmed, and thus, it shall be deemed the acquisition value as the actual transaction value. Thus, the Plaintiff’

(2) Determination as to the proposal to pay necessary expenses

As to whether the Plaintiff spent KRW 750 million as the necessary expenses for the apartment of this case, the entries and images of evidence Nos. 1 to 3, 1-1 to 3, 3, and 4 are insufficient to recognize this only, and there is no other evidence to acknowledge this otherwise, the Plaintiff’s assertion in this part is without merit.

(3) Sub-determination

As seen earlier, the necessary expenses for the Plaintiff’s assertion are not acknowledged. If the transfer income tax is calculated by deeming the purchase price of KRW 16 million, which is the sale price of the instant apartment as the acquisition price as the acquisition price, as alleged by the Plaintiff, the acquisition price of the instant apartment shall be KRW 69.7 million, which is the conversion price based on the standard market price, and the amount of tax imposed rather than the instant disposition calculated by calculating necessary expenses and calculating the transfer income tax pursuant to Article 97(3)2 of the former Income Tax Act and Article 163(6)2 of the Enforcement Decree of the same Act, is increased compared to the instant disposition calculated based on the necessary expenses, and thus, the Plaintiff’s claim cannot be accepted.

2. Conclusion

If so, it is necessary to dismiss the plaintiff's claim without reason, and the judgment of the court of first instance is just in accordance with the theory of excess, so it is judged the same as the order to dismiss the plaintiff's appeal.