The transfer value of the instant real estate decided by the Defendant is legitimate.

In light of the relationship with the payment of the price, the transaction concept, commercial practice, and experience of the parties to the real estate sale and purchase contract, the defendant's disposition of this case to deny and determine the transfer value of the real estate reported by the plaintiff is legitimate.

Article 96 of the Income Tax Act

2017Guhap20820 Revocation, etc. of Disposition of Imposing capital gains tax

AA

○○ Head of Tax Office 2

April 11, 2018

May 16, 2018

1. All of the plaintiff's claims are dismissed.

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

Cheong-gu Office

1. On August 1, 2016, the head of ○○○ Tax Office’s disposition imposing capital gains tax on the Plaintiff in the year 2009 shall be revoked.

2. On August 1, 2016, the head of ○○ Tax Office’s imposition disposition of value-added tax ○○○ and ○○○○○○ upon the Plaintiff on the first day of 2009 shall be revoked.

3. Defendant Republic of Korea shall pay to the Plaintiff ○○○○○○ and its interest at the rate of 5% per annum from September 1, 2016 to the service date of a copy of the instant complaint, and 15% per annum from the next day to the day of full payment.

1. Details of the disposition;

A. From February 19, 2004 to May 18, 2009, the Plaintiff is ○○○○○○ (hereinafter referred to as “○○○”).

A personal entrepreneur who has been engaged in food maintenance and manufacturing business under the trade name of "CC milk business" at 00-○○ number.

B. On March 3, 2004, the Plaintiff purchased and acquired real estate listed in the attached list (○○○○○-○○○ Factory Site and its ground factory building; hereinafter “instant real estate”) and its accessory machinery and equipment in the course of voluntary auction of real estate at the cost of KRW 00 million.

C. On April 23, 2009, the Plaintiff transferred the instant real estate and its accessory machinery and equipment to BB, and then calculated the transfer value to Defendant ○○○○○○○○○○○○○○○○○○○○○○, and reported and paid the transfer income tax for 2009.

In addition, the Plaintiff issued a tax invoice for the supply value of the instant real estate to BB, an individual entrepreneur, ○○○○○○, and a tax invoice for the supply value of the attached machinery and equipment, respectively, and accordingly, reported and paid the value-added tax base for the first year of 2009 to the head of Defendant ○○ Tax Office.

D. BB transferred the instant real estate to ○○○ Cooperative on August 14, 2013 at KRW 000,000,000. However, in contrast to the Plaintiff’s report on capital gains tax, BB calculated the acquisition value of the instant real estate to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○

E. As to the instant real estate from May 23, 2016 to June 10 of the same year, the head of the ○○○○○ Tax Office:

As a result, even though the Plaintiff transferred the instant real estate to BB, it was determined that the transfer value was calculated as ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○.

F. Accordingly, on August 1, 2016, Defendant ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was notified of the Plaintiff’s decision to revise the transfer income tax for the year 2009, and on August 1, 2016, the Plaintiff notified the Plaintiff of the payment

G. In addition, Defendant ○○○ Head of the tax office determined that the Plaintiff filed a tax base calculated by dividing the value-added tax base by the assessment and proposal pursuant to Article 61 of the Inheritance Tax and Gift Tax Act while supplying BB with factory buildings and accessory machinery and equipment among the instant real estate, and notified Defendant ○○ Head of the tax office of the said field investigation results to the head of the said tax office.

H. Accordingly, on August 1, 2016, Defendant ○○○○○○○○○○○○○○○○○○○○, the Plaintiff’s first-year value-added tax on 2009 was determined to be KRW ○○○○○○○○○○○○○○○○, which was the first-year value-added tax, and notified the Plaintiff on August 1, 2016 (hereinafter collectively referred to as “each of the instant dispositions, including the imposition of capital gains tax and the imposition of value-added tax”). On August 31, 2016, the Plaintiff paid both KRW ○○○○ and value-added tax.

(i) On October 28, 2016, the Plaintiff is dissatisfied with each disposition of the instant case and filed an appeal with the Tax Tribunal for adjudication.

However, on December 27, 2016, the appeal was dismissed.

SECTION 1, 2, 3, 9 (including paper numbers; hereinafter the same shall apply), 1-B, and 1-

2. Each entry of evidence 2, 3 and the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

On April 23, 2009, the Plaintiff transferred the instant real estate and its accessory machinery and equipment to BB, and at the same time transferred ○○○-○○○○-○○○○○○○○○ Industrial Co., Ltd. (hereinafter referred to as “CC oil business”).

However, in order for BB to obtain more loans from the Plaintiff as collateral for the instant real estate, a double contract was requested by BB to cover the sales amount. Accordingly, the Plaintiff entered BB the sales amount of the instant real estate as KRW 00 billion, and entered the sales amount of the attached machinery and equipment as KRW 00 million in each of the two sales contracts in a false manner.

Therefore, BB filed a false contract with Defendant ○○○○ Head of the tax office to report and pay the transfer income tax on the instant real estate.

Therefore, each of the dispositions of this case shall be revoked on the ground that Defendant ○○○○○ Head of the tax office, and ○○ Head of the tax office, calculated the transfer value of the instant real estate and the supply value of the factory building on the basis of the BB’

In addition, Defendant Republic of Korea is obligated to refund the tax paid by the Plaintiff according to each of the dispositions of this case without any justifiable cause to the Plaintiff as unjust enrichment.

B. Relevant statutes

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

C. Claim against the defendant ○○○ Head of the tax office or the director of the tax office

1) Facts of recognition

entry in Gap’s Evidence 9, 15, and Eul’s Evidence 1 to 11, without dispute between the parties;

Each finance for ○ Bank (hereinafter referred to as “○ Bank”) and ○ Bank, Inc.

In full view of the witness BB’s testimony and the purport of the entire pleadings as a result of the future information gathering, the following facts:

It is not sufficient to reverse the above facts, and there is no other counter-proofs, only by the descriptions of Gap evidence Nos. 5 through 8 and by the testimony of CCC and DD.

A) On October 1, 2004, the Plaintiff, with the trade name of “CC oil business” in the instant real estate, dried up fish oil (e.g., dissolved animal oil taken from a fluort ship, such as pedagogs and crys) imported from Japan, etc. with annexed machinery and equipment (DHA, EPA, smuggling oil, and saco games plant) and supplied it to a pharmaceutical company producing functionality food such as Omera3. In addition, on October 1, 2004, the Plaintiff establishedCC oil business (ju) and operated the said company as its representative director around that time.

On the other hand, BB engaged in the manufacture and sale of edible milk in the trade name of ○○ milk business, and produced edible milk and sold it to CC milk business operated by the Plaintiff.

B) On January 24, 2005, theCC oil business (main owner) is a ○○○○○-○○○ Factory Site immediately adjacent to the instant real estate in the process of voluntary auction of real estate on January 24, 2005, and ○○○○-○ Factory Site, its ground building, and machinery and equipment (oil oil).

The plant facilities and fixed plant facilities have been purchased and acquired at 00 million won for the price of 00 million won.

CC oil business (PP) sold vegetable oil in the above plant, such as wrings, strings, bean, etc., in which vegetable oil was laid down and sold to the customer.

C) On January 20, 2009, EE, a construction business operator, completed the work of relocating and installing oil plant facilities in the instant real estate ○○○○-○○○○○○○. BB paid 00,000 won to EE on the day.

D) The Plaintiff and BB drafted a total of five contracts with respect to the sale of the instant real estate and its accessory machinery and equipment.

E) BB paid the Plaintiff KRW 00 billion in total with the purchase price of the instant real estate, etc. from February 18, 2009 to November 2009.

F) On April 23, 2009, BB obtained the instant real estate and its accessory machinery and equipment from the Plaintiff, and received a loan from ○○○○ Dong Branch on the same day in order to raise the purchase price. At the time, the Plaintiff submitted a sales contract (No. 3) stating the purchase price of the instant real estate to ○○ Bank as the loan application document.

In addition, at the time, ○○ Bank appraised the market price of the instant real estate as ○○○○○○, and the initial plant plant facilities located in the instant real estate as ○○○○○, respectively, and appraised the oil plant facilities as ○○○○○○.

G) In the course of the tax investigation, Defendant ○○○○ Head of the tax office asked the Plaintiff of financial transaction information regarding the check payment amount ○○ billion, out of the amount paid by BB as the purchase price.

C. However, the subsequent endorser of the check was an individual, such as FF, GG, HH, III, and J, and there was no check directly received by the PCC (State).

H) On August 1, 2013, BB transferred the instant real estate and its accessory machinery and equipment to ○○○○ Cooperative (Representative KK) (Representative KK) at the price of KRW 00 million.

Accordingly, while reporting the transfer income tax to Defendant ○○○○ Head of the tax office, BB filed a sales contract stating the purchase price of the instant real estate as KRW 1.2 billion (No. 2-2, hereinafter “instant contract”) and all the purchase price of the marina production facilities installed on the instant real estate as KRW 00 million (No. 2-2).

I) Meanwhile, in the first period (from January 1 to June 30, 2009), BB supplied ○○○○○○○○ in the taxable period of 2009, 2009 (from July 1 to December 31, 201), ○○○○○ in the taxable period of 2010, 2010 (from January 1 to June 30), and 30, 2010, ○○○○○○○○ in the taxable period of 2 years (from July 1 to December 31, 201) (from December 31, 200).

(j) The value assessed on the instant real estate and machinery and equipment as of the transfer date of 2009 pursuant to Article 166 of the Enforcement Decree of the Income Tax Act and Article 61 of the Inheritance Tax and Gift Tax Act is as follows.

2) As to the transfer value of the instant real estate

Comprehensively taking account of the following circumstances acknowledged by the above facts and the evidence as seen earlier, the instant contract (No. 2-2) supports the fact that the sales price of the instant real estate was 00 billion won.

Therefore, it is reasonable to view that the actual transaction price of the instant real estate that the Plaintiff transferred to BB is KRW 00 million.

A) In order to obtain more loans from the Plaintiff and BB, there is no dispute between the parties on the fact that the Plaintiff and BB made a double contract by withdrawing the sales price of the instant real estate. However, BB submitted only a sales contract (A No. 3) stating that the sales price of the instant real estate was KRW 00 million to ○○ Bank, a lending financial institution.

Therefore, it is necessary to separately prepare a sales contract stating the purchase price of the instant real estate by BB to the Plaintiff as KRW 00 billion, and the purchase price of the attached machinery and equipment as KRW 00 million.

There seems to be no other reasonable grounds to seek.

B) In addition, it is inconsistent with the fact that BB paid the Plaintiff KRW 00 billion as the purchase price by April 23, 2009, which was claimed by the Plaintiff to be consistent with the true fact of transaction, with the content of the sales contract (in case of a contract, the purchase price shall be divided into KRW 00 million, and the balance of KRW 000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00

On the other hand, although the contract of this case was written differently from the actual performance of the contract, although the date of payment (1.20 billion won until January 20, 2009, 1.200 billion won until January 30, 2009) is somewhat different from the actual performance of the contract, the sale price was separately calculated by distinguishing the real estate of this case and its accessory machinery and equipment from the actual performance of the contract. In addition, as a special agreement, it specifically states the time of delivery of the real estate and the timing of site visits for the supplementation of trial operation and production facilities,

This content is also consistent with the parties' trade norms, commercial practices, and experience rules with respect to real estate trade.

C) The value assessed on the instant real estate and machinery and equipment as of April 23, 2009, which was the date of the transfer pursuant to Article 166 of the Enforcement Decree of the Income Tax Act and Article 61 of the Inheritance Tax and Gift Tax Act, is equivalent to approximately KRW 00 billion. The appraised value of the instant real estate at around 2009 was similar to the acquisition value stated by BB at KRW 00 billion, while the transfer value claimed by the Plaintiff is too large to KRW 00 million.

D) If the Plaintiff asserts, BB acquired the instant real estate at KRW 000,000,000 on April 23, 2009 and transferred it to ○○0,000,000 won on August 14, 2013, approximately four years and four months thereafter.

However, the instant real estate is located within the ○○○○○○○○○○○○○○○○○○○○, and the demand of the general public is very low. Furthermore, the instant real estate is a land for factory among the instant real estate.

The separate published land is at the time of transfer from 00 ○○○○○/Mam2 (based on May 31, 2008) at the time when BB acquires the separate published land.

○○○○○○○○○ or a site size (based on May 31, 2013) and so on, there is no reason to greatly increase the trading price of the instant real estate.

E) The Plaintiff only issued to BB a tax invoice (including value-added tax) for the annexed machinery and equipment of the instant real estate at KRW 000,000,000,000, and there was no separate sales contract or a tax invoice to the effect that the Plaintiff transferred the oil and equipment of the instant real estate at KRW 00,000,000,000.

However, in light of the fact that both the sales contract reported and submitted by the Plaintiff and the sales contract reported and submitted by BB include the contents of the contract on the accessory machinery and equipment of the instant real estate, or separately prepares the sales contract thereon, and that the sales price for the oil plant facilities claimed by the Plaintiff reaches approximately 1/3 of the total purchase price (○ billion won), including the instant real estate, the above circumstances are very exceptional in light of general transaction practices.

F) As to this, the Plaintiff asserted that, at its request, BB provided a tax invoice of KRW 00,000,000, 12 times in total from April 29, 2009 to November 24, 2010, on a total of 12 occasions in lieu of issuing the tax invoice of KRW 00,000,00,000 to BB, the Plaintiff issued the tax invoice.

However, the difference between the supply value of the attached machinery and equipment as asserted by the Plaintiff is too large as ○○○○○, and it is difficult to view that there is a direct correlation between the above two transactions. Moreover, there is no reasonable ground that BB is unable to separately issue a tax invoice equivalent to the above difference from the Plaintiff.

G) BB paid both the instant real estate and its accessory machinery and equipment, and the sales price for milk plant facilities to the Plaintiff andCC oil business. However, the money reverted toCC oil business (ju) is limited to the initial down payment of KRW 00 million, and the remainder of KRW 00 billion is deemed to have been reverted to the Plaintiff.

If the plaintiff transfers oil plant plant facilities to BB at the price of KRW 000,000,000, the transfer value should naturally be attributed to the PCC oil business (the owner) and the transfer value of fixed assets should be entered in the corporate account book.

However, the term "CC oil business" did not report that there was a disposal of fixed assets such as oil oil plant facilities when reporting corporate tax.

H) The acquisition value of milk plant facilities is ○○○○○○, and the unpaid balance in 2008 is written respectively in the corporate book of theCC oil business (main). In addition, on April 23, 2009, ○ Bank appraised the oil oil plant facilities as KRW 00,000,000 when it provided real estate mortgage loans to BB on April 23, 2009.

In addition, around January 20, 2009, an oil plant facility of the instant real estate ○○○ ○-○○○○○ store in the instant real estate is installed.

Since BB was installed before and after August 14, 2013, it seems that the instant real estate and its accessory machinery and equipment are included in the sales object as a matter of course at the time when BB transferred the instant real estate and its accessory machinery and equipment to ○○○○○○○○○○○○○○○ billion won.

In light of the above circumstances, if we assess the legitimate value of the milk plant equipment, the oil plant equipment of which the Plaintiff had already passed four years from the date of acquisition to BB on April 23, 2009.

It is difficult to accept the assertion that the transfer was made in the price KRW 000,000,00.

I) On the other hand, on January 7, 2009, BB prepared and issued to the Plaintiff a written confirmation (Evidence No. 11 of A) stating that “In selling the instant real estate to BB, three copies of the contract shall be prepared to obtain bank loans. Accordingly, it shall be confirmed that the contract is not a real contract. It shall be discarded after the application for bank loans.”

In this context, the term "three copies of the contract" is not the contract of this case and all sales proceeds of the facilities for the production of marina oil in KRW 100 million, such as the plaintiff's assertion, but the term "one original copy of the contract to be submitted to the bank" and "two copies of the contract."

(j) In addition, the seller, rather than the buyer of real estate, reports a low transaction price in order to reduce the burden of capital gains tax (the buyer may reduce the acquisition tax burden on time).

In addition, BB seems to have been in the position of the economically weak who should produce edible milk and sell it to the plaintiff's management, and rather, it seems that BB had to respond properly to the plaintiff's demand.

Nevertheless, the Plaintiff’s assertion that all transactions have been conducted at the request of BB in the course of selling and selling the instant real estate is unreasonable and persuasive.

3) The legality of each of the dispositions of this case

Ultimately, the Plaintiff is deemed to have transferred the instant real estate to BB at KRW 00 billion. Accordingly, if the transfer value of the instant real estate and the supply value of the factory building among the transfer value of the instant real estate are assessed and proposed pursuant to Article 61 of the Inheritance Tax and Gift Tax Act, such as [Attachment 1], the Plaintiff reported the transfer value of the instant real estate to ○○○○○○, and subsequently reported that the supply value of the factory building was under-reported.

Therefore, each of the dispositions in this case is legitimate on the ground that the Plaintiff falsely reported the transfer value of the real estate in this case and the supply value of the factory building, as it corrected and notified the transfer income tax amount and the value-added tax amount corresponding to the underreported portion

D. Claim against Defendant Republic of Korea

As seen earlier, each of the dispositions of this case is legitimate. As such, the Plaintiff’s claim for restitution of unjust enrichment against the Defendant Republic of Korea on a different premise is without merit, without any need to further examine.

3. Conclusion

Therefore, the plaintiff's claim is without merit, and it is so decided as per Disposition.