Cho High Court Decision 201Do1255 (No. 06, 2012)

It is difficult to recognize the acquisition value of the plaintiff's assertion as the actual transaction value only by the data submitted.

The contract submitted by the Plaintiff does not include the date of preparation or the number of houses of the apartment of this case, and there is no other data such as receipts or financial evidence related to the intermediate payment or the balance except the contract, so it is difficult to recognize the acquisition value claimed by the Plaintiff as the actual transaction value

Article 97 (Calculation of Necessary Expenses of Capital Gains)

2012Gudan8147 Revocation of Disposition of Imposing Capital Gains Tax

KimA

O Head of tax office

July 26, 2013

October 11, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's decision that the disposition of imposition of OOO(including additional tax) of capital gains tax for the plaintiff on June 7, 2010 shall be revoked.

1. Details of the disposition;

A. On October 11, 2004, the Plaintiff acquired OO-dong 192-3 BB apartment 401 (hereinafter “instant apartment”), but transferred it to OO-O on April 3, 2006.

B. On May 29, 2006, the Plaintiff filed a preliminary return on capital gains tax with the acquisition value as an OOOO on the transfer of the instant apartment as of May 29, 2006. However, the head of the OO office conducted an investigation of capital gains tax on the Plaintiff, and notified the Defendant of the acquisition value of the instant apartment as OOO based on the consideration of the acquisition value as an OOOO. On June 7, 2010, the Defendant issued the instant disposition that corrected and notified the OOOO (including additional taxes) of the capital gains tax for the transfer income

C. On March 21, 2011, the Plaintiff filed a request for adjudication on March 21, 201, and on January 6, 2012, the Tax Tribunal decided that “The actual acquisition price of the apartment of this case is re-surveyed and corrected the tax base and tax amount according to the result.”

D. The director of the tax office conducted a reinvestigation in accordance with the judgment of the Tax Tribunal, and determined the acquisition value of the apartment of this case as the initial acquisition value and notification to the Plaintiff on March 6, 2012.

Facts without any dispute, Gap 3 evidence, Eul 1 and 2 respectively, and the purport of the whole pleadings.

2. The plaintiff's assertion

The apartment of this case is unlawful for the defendant to recognize the acquisition value of the apartment of this case as a member's sales price, even though the plaintiff, as a non-member, received general sale of the apartment of this case as a non-member, and submitted a sales contract made up of the sales price as an OOO. The apartment of this case was constructed by KimCC, a total of 19 households which were reconstructed by BBC C&C as its representative.

3. Whether the disposition is lawful;

A. The tax authority shall bear the burden of proving the tax base that is the basis of taxation in a lawsuit seeking the revocation of the income tax disposition, and the tax base is deducted from necessary expenses, so the tax authority shall bear the burden of proving the income and necessary expenses in principle. However, since the tax authority is not only favorable to the taxpayer, but most of the facts causing necessary expenses are located within the territory under the control of the taxpayer, and it is difficult for the taxpayer to prove. Thus, if it is reasonable to allow the taxpayer to prove the tax base by taking into account the difficulty of proof or equity between the parties, it accords with the concept of fairness (see Supreme Court Decision 2006Du16137, Oct. 26, 2007).

B. We examine the following facts: (a) No. 6, No. 7, No. 8, No. 10, No. 110, No. 11, No. 2, and No. 12, testimony and oral argument of the witness KimCC; (b) the approval seal written by the Plaintiff stated that the co-ownership of the apartment site of this case was acquired at OBC Co., Ltd.; (c) the acquisition value of the building site of this case's apartment site of this case's apartment site of this case's apartment site of this case's apartment site of this case's apartment site of this case's KRW 7,00,000, No. 100, No. 1000, No. 2000, No. 2000, No. 1000, No. 2000, No. 2000, No. 2000, No. 1000, No. 2000, No.

C. Therefore, the instant disposition based on the premise that the acquisition value of the apartment of this case is an OOO won is lawful.

4. Conclusion

Therefore, the plaintiff's claim is dismissed for lack of reason.