Cho High Court Decision 201Do3123 ( October 28, 2011)

Since it is recognized that all hotel and house are transferred together, the house price should be excluded from the transfer price.

In light of the fact that the subject matter to be sold is written in the form of a hotel and a house, and the list of houses, such as bed, is attached, and that the total transfer price is determined by including the house price assessed at the time, etc., the object to be transferred shall be recognized as including a hotel and a house, so the house price should be excluded from the transfer price.

2012Gudan2828 Revocation of Disposition of Imposing capital gains tax

LAA

The director of the tax office.

December 5, 2012

January 16, 2013

1. The imposition disposition of capital gains tax of 000 won for the year 2002, which the Defendant rendered to the Plaintiff on March 11, 2011, shall be revoked to the extent that it exceeds 000 won.

2. The plaintiff's remaining claims are dismissed.

3. 60% of the costs of lawsuit shall be borne by the plaintiff and the remainder by the defendant, respectively.

The Defendant’s disposition of imposition of capital gains tax of 000 won for the year 2002 against the Plaintiff on March 11, 201 is revoked.

1. Details of disposition;

가. 원고는 2002. 10. 4. 충남 당진군 송악면 OO리 0000 소재 OO호텔 (대지 3，947㎡， 건물 4，116.26㎡ ， 이하 '이 사건 호텔')을 엄EE에게 양도한 후，2002. 12. 30. 실지거래가액으로 양도차익을 산정하여(양도가액 0000원，취득가액 0000원) 피고에게 약도소득세를 신고 ・ 납부했다.

B. On March 11, 2011, the Defendant: (a) notified the purchaser of the instant hotel from the head of the tax office having jurisdiction over MaE, and investigated the actual transaction price by deeming the transfer value as KRW 000; and (b) issued the instant disposition to correct and notify the Plaintiff of KRW 000 (including additional tax) as the transfer income tax reverted to the year 2002.

C. The Plaintiff was subject to a prior trial procedure (tax appeal).

[Grounds for Recognition] The non-contentious facts, Gap evidence 1, 3, Eul evidence 1, and the whole purport of the pleading

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

“(1) The transfer value was adjusted to KRW 000, and the transfer value was merely reduced to KRW 000, as the transfer value was reduced to KRW 100,00, and it did not make any tax imposition and collection impossible or actively reduced the transfer value, or prepare a double contract. Therefore, it is unreasonable to deem that the Plaintiff was evading the transfer income tax of this case by fraud or other unlawful act, and thus, it is unlawful for the Defendant to apply the exclusion period of 10 years to the instant disposition.

(2) The Plaintiff, along with the instant hotel, transferred a total sum of KRW 000 as well as the instant hotel, and thus, should exclude KRW 000 from the transfer value claimed by the Defendant.

(b) Relevant statutes: To be listed in attached Form;

C. Judgment on the Plaintiff’s assertion

(1) recognised facts

(A) On January 19, 2002, the Plaintiff prepared a pre-sale agreement with the hotel of this case at the sales price of KRW 000,000, and made a pre-sale registration on the same day. The main content of the pre-sale agreement is as follows.

- Contractor(A): Plaintiff-Prepaid(B)

- Purpose of Article 1: A promises to make a reservation to trade land, buildings, and fixtures on land, buildings, and fixtures on the following terms, and accepts them:

Article 2. Sales Price: Sales Price shall be 000 won, and the price shall be paid to Party B, and the sum shall be calculated and included in the total sum of the household at 000 won, as follows:

Article 3. The date of completion of trade reservation: The date of completion of trade reservation shall be at the time the requirements of paragraph 2 of the preceding Article are completed (if agreement is reached between A and B, prior thereto).

(B) On December 30, 2002, the sales contract signed by the Plaintiff at the time of filing the tax base of transfer income was accompanied with a certificate of seal impression attached to the effect that the date of the instant hotel contract was entered on January 19, 2002, the sales amount of KRW 000, and October 4, 2002 on the remainder payment date, and that the buyer’s strict EE is the actual transaction price.

(C) On January 2007, when transferring the hotel of this case to Samsung Tax Office, Samsung Tax Office, which is the district tax office, reported the tax base of transfer income at KRW 00,000, and the head of Samsung Tax Office notified the Defendant of the difference in actual cost.

(D) As a result of the investigation, the Defendant: (a) prepared a sales contract with the purchaser’s premium of KRW 000 with the transfer value of the hotel of this case as a result of the buyer’s investigation; and (b) confirmed that the Plaintiff agreed to transfer or take over the collateral security debt amount of KRW 00 on the hotel of this case on the condition that the purchaser reimburses the Plaintiff; and (c) reported the transfer value to KRW 000,000, despite the change of the Plaintiff’s transfer value to KRW 000, the Plaintiff reported the transfer value to KRW 00.

[Ground of Recognition] The non-contentious facts, Gap evidence 2, 3, Eul evidence 2 through 5 (including each number), and the whole purport of the pleading

(2) Determination

According to the above facts, it is reasonable to view that the purchaser made a sales contract stating a transfer value of 000 won, not actual transaction value, retroactively with the knowledge that the purchaser was not the actual transaction value, by subrogated repayment of the amount of 000 won, and that the purchaser made a false contract stating that the transfer income tax was reported by presenting the contract on January 19, 2002. The transfer income tax of this case is attributed to the portion of 2002, and the time limit for filing the tax base was from May 31, 2003, and the time limit for excluding the assessment of national taxes on this case was from June 1, 2003, which is the following day of the time limit for filing the report, and the defendant's act of the plaintiff constitutes "the taxpayer evades national taxes by fraud or other unlawful acts" under Article 26-2 (1) of the Framework Act on National Taxes, and thus the plaintiff's assertion that the exclusion period of imposition of national taxes is legitimate as it applies from the starting date of the above exclusion period.

D. Judgment on the Plaintiff’s assertion

(1) The initial promise to sell and purchase the hotel of this case made between the plaintiff, the plaintiff, the HE, and the HF was included in the land, buildings, and fixtures as the subject matter of sale, and the list of house fixtures of the hotel and auxiliary facilities was attached to the promise to sell and purchase the hotel of this case. The list includes the total of 32 items, including 53, including 00 won, and the total of the house fixtures at the time was assessed as 00 won and the total amount was determined as 000 won. Since the construction cost promised by the plaintiff at the time of the promise to sell and purchase was increased, it was finally paid 000 won upon agreement with the E, and it is reasonable to view that 00 won was included in the transfer value of the hotel of this case, and that 00 won was included in the acquisition value of the hotel of this case and the amount to be imposed upon the plaintiff at the time of the above promise to sell the hotel of this case. Accordingly, it is reasonable to view that the transfer value of the hotel of this case was included in the above 0000 won.

(2) The Plaintiff’s assertion on this part is with merit.

3. Conclusion

Thus, the disposition of this case should be revoked within the scope exceeding 000 won, so the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit.