Seoul Administrative Court 2014Gudan52230 ( November 28, 2014)

Any disposition imposing capital gains tax by calculating the conversion value even if the actual acquisition value of land can be verified is illegal.

The Plaintiff calculated the acquisition value of land shares as the conversion value on the ground that the Plaintiff could not verify the acquisition value of land shares due to the failure to submit a written contract on the instant land shares, and notified the transfer income tax, but the actual acquisition value can be recognized as 180 million won due to the transferor’s testimony, recording of conversations between the co acquisitor

Article 97 of the Income Tax Act

2015Nu30540 Revocation of Disposition of Imposing capital gains tax

AA

Head of Geumcheon Tax Office

Seoul Administrative Court Decision 2014Gudan52230 decided November 28, 2014

September 3, 2015

September 24, 2015

1.The judgment of the first instance shall be modified as follows:

A. On December 1, 2012, the Defendant’s imposition of ○○○○○○ (including additional tax) of transfer income tax for the Plaintiff on December 1, 2012, in excess of KRW 00,00,000, shall be revoked.

B. The plaintiff's remaining claims are dismissed.

2. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The Defendant’s imposition of ○○○○○○ (including additional tax; hereinafter referred to as “instant disposition”) for the Plaintiff on December 1, 2012 shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

This Court's explanation is the same as the corresponding part of the judgment of the court of first instance (as stated in the second-class 2 or 21 of the judgment of the court of first instance, and the corresponding part of the disposition of 1.) except for the second-class 2 or 21 of the judgment as follows. Thus, this Court's explanation is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence

(2) The main part shall be the part

In Part 15, "BB who jointly purchased the land of this case" in Part 2, 15, of the first instance court decision, "BB" is regarded as "BB, which jointly purchased shares of the same size as the land of this case (hereinafter referred to as "BB shares") with CCC."

2. Summary of the plaintiff's assertion

CCC jointly purchased the shares of the instant land and BB in KRW 362 million with Nonparty BB and shared the purchase price with 1/2,000,000,000 won, and decided to transfer the ownership of 1/2. However, Nonparty BB paid the purchase price to the public funds of △△△△△△△ church with the head of △△△△△△△△ branch, and then paid the purchase price with KRW 181 million and returned the purchase price to the church. However, △△△△△△△△ branch became aware of the embezzlement of BB’s public funds on August 2003, and CCC returned KRW 181 million, which constitutes the purchase price of the instant land and KRW 46 million to the △△△△△△ branch. Accordingly, the instant disposition was unlawful, provided that the Defendant could not know the real acquisition price on any other premise, and thus, the instant purchase price constitutes an unlawful acquisition price.

3. Whether the instant disposition is lawful

(a) Facts of recognition;

1) On November 25, 2002, CCC and BB purchased shares of the instant land and BB from Non-Party 1, 2002, and completed the registration of ownership transfer with respect to each of the shares 575.165/1,75, respectively. At this time, the payment of the purchase price was paid as church’s public funds through BB, which is the head of △△△△△△ Council.

2) Around August 2003, 2003, △△△△△△△ Council demanded BB and CCC to transfer the instant land shares and BB shares. Accordingly, BB shares transferred to Nonparty △△△△ on November 11, 2003, but CCC, which is not the nature of the above church, established ○○○○○, the office director of △△△△△△△△△△△△△△△ on September 16, 2003 as a collective security, and did not refund the purchase amount or transfer the shares. △△△△△△△△△△△△△△△△△△△△△△△△△△ KRW 240 million. The collective security was voluntarily issued on December 13, 2004, under the name of ○○○○○○ on September 2, 2006, 2006, 20067.

3) On November 22, 2006, CCC completed a registration of creation of a mortgage with a maximum debt amount of KRW 165 million against a mortgage-holder, ○○○○○○○○○○○○○○○○○○○ Dong, and its ground, and a building of one-story ○○○○○○○○○○○○○○○○○○ Dong, and a building of one-story, extractment, (the first floor ○○○○○○○○, and underground room ○○○○○). Meanwhile, on August 17, 2006, △△△△ Mutual Savings Bank, a creditor mutual savings bank, and a debtor CC registered the establishment of a mortgage-backed establishment of a mortgage-based ○○○○○○○○○○○○○○○○○○○ and its ground, and a house for evaluation of extractment (the first floor 10 square meters).

4) △△, the transferor of the instant land share, was present as a witness on the third date for pleading of the instant case, and stated to the BB and CCC that the transfer of 1,150.33/1,757 (No. 282.12) of the instant land share and BB share in KRW 1,200,000 per square year. Meanwhile, on April 30, 2003, △△ reported the transfer income tax by applying the transfer value of the instant land and BB share to the standard market price, but the transfer income tax was reduced or exempted pursuant to Article 69 of the Restriction of Special Taxation Act.

5) Around August 2013, DaD, the births of CCC, confirmed BB B B, who was a joint purchaser, and related documents, such as the contract, receipts, etc. on the instant land. According to this, BB asserted that: (a) August 20, 2002; (b) the intermediate payment of KRW 150 million on September 17, 2002; and (c) the remainder of KRW 187 million on September 23, 2002 (the acquisition of collateral security obligation), including the remainder of KRW 187 million (the acquisition of collateral security obligation); (b) the total purchase price of shares on the instant land and BB was KRW 362 million; but (c) the latter part BB was not able to find relevant documents on the grounds of directors, etc.

6) At the time CCC acquired the instant land shares, the registration of the establishment of mortgage on the instant land shares amounting to KRW 98 million, KRW 18 million, KRW 100,000, KRW 100,000, KRW 100,000, KRW 1000,000, and KRW 10,000,000,000, and superficies creation

Facts without any dispute, Gap's evidence 6, 7, Gap's evidence 9, and 10's evidence 1, 2, Gap's evidence 11, Eul's evidence 2-1 and 2, Eul's testimony and the whole purport of each of the testimony and arguments of the court of first instance and BB.

B. Determination

1) The illegality of the instant disposition

(5) At the time of the Plaintiff’s failure to submit documents, such as a contract for the instant land share and receipts, there is no objective evidence to know the acquisition value of the instant land. However, in view of the following circumstances, i.e., the transferor’s testimony that the instant land was sold at KRW 1.2 million per square year. This is similar to the Plaintiff’s total acquisition value of the instant land and BB share at KRW 362 million (per square year, if the total sale area is divided into KRW 282.12,00), (2) The CCC returned money to the △△△△△△△△△△△△ Group regarding the purchase price of the instant land at KRW 227 billion, and (3) the Plaintiff’s new land purchase price and KRW 200,000,000,000,000,0000,000,000 won, which was KRW 70,000,000,000,000.

Therefore, the instant disposition, based on the premise that the acquisition value of the instant land shares cannot be confirmed, is unlawful.

(ii)the calculation of a reasonable amount of tax;

Furthermore, the following table is examined as to the legitimate capital gains tax amount:

Therefore, the legitimate amount of capital gains tax among the dispositions of this case is ○○○○○○.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above scope of recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is partially accepted, and the judgment of the court of first instance shall be modified as per Disposition.