early 2010 Heavy2152 ( December 28, 2010)

Since it is merely a simple exchange and it cannot be confirmed the actual transaction price, the disposition based on the conversion price is legitimate.

In light of the fact that the parties to an exchange contract did not undergo market price appraisal while entering into the exchange contract, stated that both parties entered the value voluntarily set up in the exchange contract at the time of investigation, and that there is a big difference between the value and the value of the real estate at the time of the court's appraisal as a result of the exchange contract and the value of the contract

2011Gu 790 Revocation of Disposition of Imposing capital gains tax

KimA

Head of Namyang District Tax Office

November 19, 2012

December 10, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 000 on March 4, 2010 against the Plaintiff on March 4, 2010 is revoked.

1. Details of the disposition;

A. On October 3, 2006, the Plaintiff acquired an Oqua building 000 (hereinafter referred to as “instant real estate”) in order to exchange the land and building located at 000,000, and 000 Oqua (hereinafter referred to as “exchangeed real estate”) owned by the Plaintiff with the land and building located at 000 OO pina-dong, Yongsan-gu, U.S. (OOOB) located within the territory of the Plaintiff on October 3, 2006 (hereinafter referred to as “the instant exchange contract”), and transferred it to the LCC on January 30, 2008.

B. After investigating the transfer income tax on the Plaintiff, the director of the Central Regional Tax Office of China determined the transfer value of the instant real estate as KRW 000,000, the conversion value of the instant real estate as KRW 00, and notified the Plaintiff of the results of the tax investigation, and the Plaintiff filed a request for pre-assessment review

C. Accordingly, the director of the Central Regional Tax Office of China conducted a reinvestigation on the above transfer income tax, and as a result, it was decided that the initial disposition that decided the conversion value as the acquisition value was justifiable. Accordingly, on March 4, 2010, the Defendant decided and notified the Plaintiff of KRW 000 of the transfer income tax for the year 2008 (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 4, 2010, and the Tax Tribunal dismissed the said appeal on December 28, 2010.

[Ground of Recognition] The facts without dispute, Gap evidence 1, 2, and 4 through 7, and Eul evidence 1 through 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff and 0B evaluated the instant real estate at KRW 000 and exchanged real estate at KRW 000, and entered into the instant exchange contract, and subsequently, completed the settlement of the difference between the instant real estate exchanged and the instant real estate. Therefore, even if the actual acquisition value of the instant real estate was verified, the instant disposition that applied the conversion value on a different premise is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Legal principles

In the calculation of gains on transfer, the actual transaction price, which is the basis for the calculation of gains on transfer, is not a 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 Decisions 2006Du7171, Apr. 26, 2007); and where the transaction is an exchange, it shall be a value exchange based on the monetary value of the object, and in particular, in the case of a wind accompanied by liquidation procedures for the difference in the value of the object to be exchanged, it shall be possible to verify the actual transaction price, but in the case of a simple exchange, it shall not be possible to verify the actual transaction price (see, e.g., Supreme Court Decisions 98Du19841, Nov. 26, 199; 2009Du19465, Feb. 10, 2011).

(2) Facts of recognition

(A) On October 3, 2006, KimD representing the Plaintiff entered into the instant exchange contract with the E, and the 0BB representing the F, with the following content:

(Omission of Details of Conclusion)

(B) On October 6, 2007, KimD entered into a sales contract to sell the instant real estate at KRW 000, while literatureG entered into the registration of ownership transfer on January 30, 2008.

(C) During the conclusion of the instant exchange contract, the Plaintiff did not appraise the market price of the instant real estate exchanged.

(D) On June 11, 2009, the 0B stated that the Central Tax Office was investigated into the process of transferring the instant real estate, and that there was no basis for calculating the exchange real estate and the exchange value of the instant real estate, and that the value of the instant real estate is not KRW 000,00, while the 0B was investigated by the Central Tax Office on June 23, 2009, the 0B stated that the exchange real estate and the instant real estate did not have any market value appraisal at the time of entering into the instant exchange contract, and that both parties entered in the instant exchange contract at will.

(E) As a result of the court’s entrustment of market value appraisal, appraiser Hah presented the opinion that the value of the instant real estate is KRW 000 at the time of the instant exchange contract.

[Grounds for Recognition] The entry of Gap and Eul evidence 4, Eul evidence 5, and Eul evidence 4, and 5, and the results of the appraisal commission to the North Deputy Governor of the OE Corporation of this Court, and the purport of the whole pleadings

(3) Determination as to the legitimacy of the instant disposition

In light of the above legal principles and recognized facts, the Plaintiff’s disposal of the real estate in this case without undergoing the market price appraisal of the real estate in this case and the exchange real estate in this case, and the 0B and DoD, which are the actual parties to the exchange contract in this case, stated that the value of the real estate in this case at the time of the exchange contract in this case is 000 won or more which are indicated in the exchange contract in this case within 3 months before and after the date of acquisition. In view of these circumstances, 00 won, which is the value of the real estate in this case at the time of the exchange contract in this case, cannot be deemed as the actual acquisition value of the real estate in this case, and the exchange contract in this case should be deemed as not only the actual acquisition value of the real estate in this case before and after the date of acquisition, but also the value of the real estate before and after the date of acquisition and after the date of acquisition under the provisions of Article 2 of the Income Tax Act, and it should be deemed that there is no similarity between the transfer value and acquisition value before and after the transfer value.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.