Seoul Administrative Court 201Gudan8195 ( August 10, 2011)

Cho High Court Decision 2010Du3295 ( October 23, 2011),

Disposition that is divided in proportion to the value of land, buildings, etc. is not clear shall be illegal.

Considering the details and circumstances before and after the conclusion of a sales contract, the agreement between the parties to distinguish the prices of the telecom and the land is deemed to have been prepared according to the agreement, and so long as the agreement itself is not deemed null and void due to a false agreement, etc., the amount of the agreement cannot be deemed to be the actual transaction price,

Article 100 of the Income Tax Act

2011Nu31439 Revocation of revocation of the imposition of transfer tax, etc.

Park XX

The Director of the Pacific District Office

Seoul Administrative Court Decision 2011Gudan8195 decided August 10, 2011

July 25, 2012

September 5, 2012

1. The part of the judgment of the court of first instance against the Plaintiff falling under the order to revoke the following is revoked. The part of the disposition imposing capital gains tax of KRW 000 on June 17, 2010, which the Defendant imposed on the Plaintiff on June 17, 2010, which exceeds KRW 00

2. The remaining appeal filed by the Plaintiff is dismissed.

3. 10% of the total litigation costs shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 000 on June 17, 2010 against the Plaintiff on June 17, 2010 shall be revoked.

1. Details of the disposition;

A. On November 15, 2003, the Plaintiff and its wife (hereinafter referred to as the “Plaintiff, etc.”) acquired 1/2 shares of the land and its ground buildings (hereinafter referred to as the “the instant telecom”) of Songpa-gu Seoul Metropolitan Government 000-9 and 000 won in total, and the Plaintiff acquired 00-1 land (hereinafter referred to as “the instant land”) of the same day.

B. On July 10, 2008, the Plaintiff et al. used the instant land as a parking lot for the instant telecom, transferred the instant telecom and land to BB.

C. On July 23, 2008, the Plaintiff et al. reported and paid KRW 000 (Plaintiff 000, KRW 000, KRW 000, and KRW 000) of the transfer value of the instant land calculated by using the transfer value of the instant land as KRW 00,000 (Plaintiff 00, KRW 00).

D. As to this, the Defendant: (a) transferred 000 won to B, while the Plaintiff et al. transferred the instant Moel and land to B; (b) arbitrarily calculated the transfer value by asset type; and (c) on the ground that the said date, etc. was the case where transaction was conducted including the real estate price at the time of the transaction of real estate for business purpose, even though it was ordinary, the said amount was calculated by calculating the transfer value of KRW 000 pursuant to Article 100(2) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same shall apply) and issued the instant disposition that additionally imposed and notifies the Plaintiff of the transfer income tax of KRW 00 for the year 2008.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 8, 11 to 14 (including paper numbers; hereinafter the same shall apply) and Eul evidence 1 to 3 and 5

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) The Plaintiff et al. separately determined and transferred the transfer value at the time of the transfer of the instant cartels and land to KRW 000 and KRW 000, respectively, and thus, it does not constitute “when the distinction between the value of land, buildings, etc. is unclear” under Article 100(2) of the former Income Tax Act, and thus, the instant disposition otherwise reported is unlawful.

2) Where the value of the house and fixtures is indicated separately from the sales price of the real estate on the real estate sales contract, the National Tax Tribunal’s decision that the house and fixtures should be excluded from the transfer price. In this case, since the Plaintiff indicated 00 won in the real estate sales contract as the house and fixtures separately from the real estate sales price, the instant disposition that included 000 won in the house and fixtures in the transfer price was unlawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Issues

The key issue of the instant case pertains to whether the transfer price of the instant Moel, etc. is KRW 000, the transfer price of the instant Moel’s land, KRW 000, and the transfer price of the instant Moel’s house and equipment by dividing it into KRW 000, as alleged by the Plaintiff, or whether the instant Moel and land including house and equipment were transferred to KRW 000,000, or whether the transfer price of the instant Moel, etc., including house and equipment, together with the instant Mour’s land as alleged by the Defendant, is whether the transfer of the instant Moel, etc. constitutes “a case in which the distinction between the “land and building

2) Criteria for judgment

Article 100 (2) of the former Income Tax Act provides, “Where the transfer value is calculated based on the actual transaction value and where the land and buildings are acquired or transferred at the same time, they shall be divided and entered, and if the distinction between the land and the buildings is unclear, it shall be calculated in accordance with the Presidential Decree.” Article 166 (6) of the former Enforcement Decree of the Income Tax Act provides, “In applying Article 100 (2) of the Act, if the distinction between the value of the land and the buildings is unclear, it shall be calculated in accordance with the proviso of Article 48-2 (4) of the Enforcement Decree of the Value-Added Tax Act, if the distinction between the value of the land and the buildings is unclear in the application of Article 100 (2) of the former Enforcement Decree of the Income Tax Act.” In light of the above provision, it can only be seen as a case where the land and the buildings are traded at the same time without the distinction between the actual transaction value of the relevant real estate and other real estate, etc. (see, e.g., Supreme Court Decision 91768Da68).

(iii) the facts of recognition

The following facts are not disputed between the parties, or recognized by Gap evidence of Nos. 1 through 21, Eul evidence of No. 6 to 8, Eul's changed witnessB, and HanB's testimony as a whole.

A) The instant land, which was owned solely by the Plaintiff, was separate from the instant telecom, which was owned by the Plaintiff et al., and was used as a single-use telecom lot in the form of a site.

B) Prior to May 27, 2008, the Plaintiff, etc. and the changedB had been engaged in the price negotiations on the instant land and the telecom with the intermediation of HanB, etc., an employee belonging to the 'OOO Licensed Real Estate Agent Office'. Through HanB, etc., the Plaintiff, etc. agreed to trade the instant telecom and the land in total at KRW 000.

C) Around May 27, 2008, the Plaintiff entered into a sales contract (Evidence A5) with the content that the Plaintiff sells the instant land at KRW 000,000 on the day of the contract, the intermediate payment KRW 000 on June 25, 2008, and the remainder KRW 000 on July 10, 2008, respectively.

D) After that, on June 15, 2008, the Plaintiff et al. sold the instant telecom to KRW 000 (including all the house fixtures and facilities 000 won) for the purpose of selling the telecom, and on June 25, 2008, entered into a sales agreement with the Plaintiff et al. to pay the intermediate payment of KRW 2 billion for the remainder of KRW 000 on July 10, 2008 (A evidence 6; hereinafter referred to as the “instant agreement”).

E) As of May 27, 2008, 500 million won as of June 13, 2008, 200 billion won as of June 13, 2008, 200 billion won as of July 25, 2008, and 700 million won as of July 2, 2008, and 1000 won as of July 10, 2008. In addition, as of July 10, 2008, the changedB paid to the Plaintiff, etc. the remainder to the Plaintiff, etc. by obtaining a certificate of completion of real estate transaction agreement with the purchase of the instant cartel at KRW 00,00,00 for the purchase of the instant land at KRW 00,00 for the price under the instant contract, after completing the registration procedure and making a loan as security.

F) During the investigation process of the transfer income tax on the instant telecom and land, B, the assignee, made the following statements (No. 4).

- The Plaintiff had a face-to-face and had a direct purchase and sale.

- The Plaintiff demanded 000 won by combining the instant telecom and the land, and the changed BB presented 00 won, and eventually there was a strong desire to trade at KRW 000.

- The first contract was intended to purchase two parcels in 000 won, or the remainder was divided into two parcels at the Plaintiff’s request, and agreed without any consideration at the time. The price calculation by parcel is made only on the confirmation of the contract prepared by the Plaintiff.

- The first contract entered into a contract on the condition that the equipment should not be separately calculated, and the telecom and the parking lot should be transferred to 000 won, and later, the contract was prepared in a situation where the Plaintiff is well aware of the first purchaser of the telecom by separately providing common equipment when the Plaintiff transfers the telecom business.

G) The Plaintiff et al., after the acquisition of the instant telecom, separately purchased the telecom and equipment, and separately stored the telecom and equipment in the account, and filed a final return on the tax base of global income tax (Evidence A 16 to 18).

4) Determination

A) In light of the circumstances revealed by the facts and evidence revealed earlier, the Plaintiff’s transfer of the instant land and the telecom to the changedB along with the apartment, and the contract was concluded separately, and it cannot be deemed as a case where the distinction between the value of the land and the buildings is unclear. The reasons are as follows.

First, barring any special circumstance, it is presumed that the agreement was prepared in accordance with the sales contract between the parties, and that the agreement was prepared differently from the actual ones (see, e.g., Supreme Court Decision 93Nu2353, Apr. 9, 193). However, the Plaintiff, etc. and the changed BB agreed on the conditions of transfer of the franchise and land through HanB, etc., a licensed real estate agent office employee, and prepared the instant contract (Evidence 5 and 6) to distinguish the prices of the franchise and land in this case, and thereafter, B, with the Plaintiff, etc., filed a report on the real estate transaction agreement along with the instant contract and the certificate of seal impression, and received the certificate of real estate transaction declaration from the Songpa-gu Office, barring any special circumstance. In light of the above, it is presumed that the instant contract was prepared as a sales contract as stipulated by the sales contract between the parties.

Second, the gist of the statement made by the Defendant from No. 4 in the door-to-written reply (No. 4) is that “B had been prepared in two separate lots at the Plaintiff’s request after the combination of the instant telecom and the land was forced to sell more than 00 won.” Accordingly, the Defendant appears to have consented to the preparation of the instant contract as if the changed B entered into a separate contract at the Plaintiff’s request even though the changed B had agreed on the classification of the prices of the instant telecom and land. However, even if the changed B’s statement stated in the door-to-written reply was followed, it cannot be readily concluded that there was no agreement on the classification of the prices as alleged by the Defendant, and that there was no agreement on the division of the two lots as to the instant contract as the agent, and that there was no difference between the Plaintiff and the KB’s statement and the KB’s statement to the effect that there was no change in the credibility of the existing contract (which can be understood to the effect that there was no difference between the original and the changed price of the Plaintiff’s statement.)

In light of the fact that “the instant contract is prepared by distinguishing the prices of the instant Moel from the land,” etc., as alleged by the Defendant, it cannot be deemed that the instant contract was drafted voluntarily without agreement on price classification, as alleged by the Defendant.

Third, the actual transaction price, which is the basis for calculating gains from transfer, is not the general market price that reflects the objective exchange value, but the actual transaction price itself or at the time of the transaction (see, e.g., Supreme Court Decision 97Nu6629, Feb. 9, 199). In light of the fact that the contract of this case is likely to be subject to an agreement between the parties to distinguish the prices of the instant mother and land when considering the process of the conclusion and the situation before and after the conclusion of the agreement, so long as the agreement itself does not reach the extent that the agreement itself is null and void due to a false declaration of agreement, etc., even if the contract of this case was prepared with a certain degree of narcotic drugs, the amount of the agreement shall be deemed as the actual transaction price (the defendant's assertion that the plaintiff merely distributes the transfer price in a unilateral and arbitrary manner without any objective and reasonable basis for calculating

Fourth, it is necessary to trade the telecom and land of this case separately transacted at the time of acquisition (No. 1 and 3). In the case of the land for non-business use subject to heavy taxation, it is necessary to trade with the telecom separately from the telecom. In addition, considering the transaction price and officially announced land price, inflation rate, use and ownership status at the time of acquisition and transfer, etc., it cannot be deemed that the distinction between the transfer price of the telecom and land as described in the contract of this case as indicated in the contract of this case

B) However, it cannot be deemed that a separate transfer of the telecom and equipment from the instant telecom. The reasons are as follows.

According to the evidence evidence evidence evidence Nos. 16 through 18, the plaintiff et al. may recognize that the plaintiff et al. purchased some of the house and fixtures after the acquisition of the apartment of this case and entered them into a separate account. However, even according to the contract of this case, it is merely a set of 00 won including the house and fixtures and all of the house and fixtures, without preparing a separate contract for the house and fixtures. Accordingly, even at the time of reporting the contract for real estate transactions, the plaintiff et al. did not separately calculate the price of the house and fixtures at the time of the acquisition of the apartment of this case (the fact that there is no dispute). In light of the fact that the plaintiff et al. entered into a contract for the transfer and takeover of the house and fixtures with the apartment of this case with the mother of this case (the plaintiff et al., No. 6 and No. 7). The plaintiff et al.'s assertion that the house and fixtures of this case were transferred as a whole with the apartment of this case cannot be accepted.

(d) Justifiable tax amount.

The Defendant is recognized to have deducted the total income amount (transfer loss incurred from golf membership transfer) generated in the year 2008 at the time of the instant disposition (Article 3 of this case, and the Plaintiff did not deduct the total income amount at the time when the Plaintiff initially declared capital gains tax). In the event of reflecting the actual transaction price as seen earlier and the income amount subject to summing-up, the reasonable tax amount is KRW 00,000 as indicated in the attached tax amount.

Therefore, the legal portion of the disposition of this case is lawful, and the exceeding part is unlawful.

3. Conclusion

The part of the judgment of the court of first instance against the plaintiff corresponding to the part exceeding the reasonable tax amount shall be revoked, and the part exceeding the reasonable tax amount among the disposition of this case shall be revoked. The remaining appeal filed