Busan District Court 201Guhap2560 (2.092.09)

Cho High Court Decision 2010Du2097 ( October 13, 2011)

The transfer value claimed by the real estate seller is recognized as the buyer's acquisition value.

부동산 매도인이 주장하는 양도가액 외에 추가 매매대금을 지급하였다는 점에 관한 영수증이 없는 점, 매도인에게 지급하기 위하여 인출하였다고 주장하는 금원 중 일부는 법무사와 중개수수료로 지급한 금액으로 보이는 점 등에 비추어 보면 부동산 매도인이 주장하는 양도가액이 매수인의 취득가액으로 인정‰�

2012Nu980 Revocation of Disposition of Imposing capital gains tax

Nam

Head of Eastern Tax Office

Intervenor joining the Defendant

RedO

Busan District Court Decision 2011Guhap2560 Decided February 9, 2012

November 7, 2012

December 26, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. The part arising between the Plaintiff and the Defendant out of the total litigation cost is borne by the Plaintiff, and the part resulting from the participation is borne by the Intervenor joining the Defendant.

1. Purport of claim

The Defendant’s disposition of imposition of KRW 000 of the capital gains tax for the year 2006, which was 2006, to the Plaintiff on February 10, 2010 (the purport of the claim as stated in the correction of the correction of the grounds for the claim as of November 5, 2012, appears to be clerical error) (the Plaintiff sought revocation of the disposition of imposition of the capital gains tax for the year 2006, February 10, 2010 (the Plaintiff sought revocation of the disposition of imposition of the capital gains tax for the year 2006, which was 100, and the Defendant sought revocation of the disposition of imposition of the capital gains tax for the year 200,000, which was 00, which was 00 won in the trial, to which the Defendant sought revocation while reducing the purport of the claim in the trial, but it appears to have

2. Purport of appeal

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

1. Details of the disposition;

A. On December 14, 2001, the Plaintiff sold to ParkB on October 16, 2006, the Plaintiff purchased and owned 411.85 square meters of Seoul, Gangnam-gu, 00-6, 226.8 square meters of multi-family houses above ground (hereinafter “instant real estate”) from the Intervenor joining the Defendant (hereinafter “ Intervenor joining the Defendant”) and RedA.

B. On December 29, 2006, the Plaintiff filed a preliminary return of capital gains tax with the amount of KRW 000, the transfer value of the instant real estate was calculated as KRW 000, the acquisition value was deducted as KRW 000, and other necessary expenses.

C. On February 10, 2010, the Defendant confirmed the transfer value of the instant real estate sold by the Intervenor and RedA, as KRW 000, and confirmed the difference between the Plaintiff’s acquisition value and the Plaintiff’s acquisition value. After a fact-finding survey, the Defendant determined the Plaintiff’s real estate acquisition value as KRW 000, and corrected and notified KRW 000 of the transfer income tax for the year 2006 (hereinafter “the original disposition”).

D. The Plaintiff appealed and filed an objection on April 13, 2010, and filed an appeal with the Tax Tribunal on June 22, 2010, but was dismissed on May 13, 201.

E. On October 2, 2012, when the lawsuit of this case was pending, the Defendant determined the Plaintiff’s acquisition value of the real estate of this case as KRW 000 and notified the reduction of KRW 000 from the tax amount of the original disposition of this case (if the amount of KRW 000 is reduced from KRW 000, the transfer income tax for the year 2006 shall be KRW 00; hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 4-1, Eul evidence 1-2, Eul evidence 2-1, Eul evidence 2-1, Eul evidence 3 and 11-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) Plaintiff

The plaintiff acquired the real estate of this case from the supplementary intervenor and the HongA, and even if the plaintiff paid to the supplementary intervenor who is the seller, 000 won (i.e., down payment of 000 won + subrogation of 000 won for a bank loan of 000 won + succession of the lease deposit obligation of 000 won + KRW 000 which was received on December 31, 201, + KRW 000 paid on January 16, 200 + KRW 000 paid on January 16, 202 + KRW 000 paid on January 16, 2002 + or KRW 000 paid on January 16, 2002). The disposition of this case on the premise that the plaintiff acquired the real estate of this case at KRW 000, is unlawful.

2) Defendant

The Plaintiff asserted different contents of the contract, such as submitting a different sales contract, when submitting the report of the transfer income tax of this case at the time of the submission of the settlement statement in May 2007 and the on-site investigation in December 2009. In a trial request, the Plaintiff cannot be trusted by continuously changing the Plaintiff’s assertion, such as changing the succeeded amount of the deposit amount to KRW 00,000, and claiming the acquisition value to KRW 000.

A sales contract that the Plaintiff acquired in KRW 000 states that there is no such contract, and some of them appears to have forged a sales contract, which appears to have been altered by misunderstanding the sales price portion, and it is reasonable to calculate the acquisition price inasmuch as the transaction price recognized by the Intervenor, who is the seller, is 00 won and the transaction price recognized by the buyer, is 00 won and is 000 won, which

Therefore, the instant disposition is lawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are either disputed between the parties, or there is no dispute between the parties, Gap evidence Nos. 2-1 through 4, Gap evidence Nos. 3, 4, and 5 (the same as Eul evidence No. 4-3, and according to the overall purport of the pleadings, the whole documents are presumed to have been authentic, as the whole documents can be recognized respectively. The defendant defense that this document was forged by the plaintiff, but there is no evidence to prove that some testimony of the RedCC by the witness of the first instance trial as corresponding thereto is difficult to believe, and there is no other evidence to prove otherwise), Gap evidence Nos. 6-1, 6-2, Gap evidence Nos. 7-1, 7-2, Eul evidence Nos. 8, Eul evidence No. 4-3, Eul evidence Nos. 6 and 7-7, the result of the written appraisal of appraiser KimD, the result of the written appraisal of appraiser Kim DD, and the whole purport of the testimony of the witness of the first instance trial.

1) On December 14, 2001, the Plaintiff purchased the instant real estate from the Intervenor and the HongA, and the HongA was a parent of the Intervenor, and the HongA was a parent of the Intervenor, who received the sales price under the said sales contract.

2) The parties to the transaction prepared a sales contract (Evidence 5 and No. 4-3, 200, hereinafter referred to as "one sales contract") with the sales price of KRW 000 as at the time of the above sale as at the contract date, and with the remainder of KRW 000 as at December 31, 2001, the deposit amount as at the time of the balance of the sales price shall be included in the sales price confirmed at the time of the remainder of the sales price, and KRW 00,000 shall be succeeded to or paid according to the Plaintiff's intention, and KRW 00,000 among the down payment shall be paid until December 22, 2001 at the time of the contract. ② Meanwhile, as at the same day, the special contract as above, entered into a sales contract (Evidence 5 and No. 4-3, hereinafter referred to as "one sales contract") with the sales price of KRW 00,000 on the contract date, and the remainder of KRW 0,000 on December 31.

3) The Plaintiff paid KRW 000 as part of the contract deposit under the above sales contract, and KRW 000 as the remainder down payment on December 20, 2001, respectively, to the Intervenor assisting the Intervenor. On December 29, 2001, the Plaintiff repaid KRW 000 of the light bank loan (interest, KRW 000 if the termination cost is added to the interest, and KRW 000 if the termination cost of the right to collateral security was added), and the obligation to return the lease deposit that the Plaintiff succeeded to, is KRW 00.

4) On December 31, 2001, the Intervenor prepared and issued two copies of the receipt of KRW 000 and KRW 000 to the Plaintiff (Evidence 2-4).

5) On January 16, 2002, the Plaintiff withdrawn KRW 000,000,000,000 from the money that the Plaintiff transferred to the Plaintiff’s husband at the Y branch of the New Bank, and on the same day, at the Samsungdong branch of the New Bank on the same day, received the instant real estate as a collateral security, and subsequently withdrawn KRW 00,00,000,000, respectively.

6) Meanwhile, the Intervenor reported the transfer value of the instant real estate at KRW 000 and paid transfer income tax, etc. (the Intervenor claimed that the transfer value of the instant real estate was KRW 000 when the auxiliary intervenor was in the trial).

7) For the purpose of the instant real estate loan, the appraisal value of January 7, 2002, which was commissioned by the head of Samsungdong Branch of the New Bank, to the DD Appraisal Corporation, is KRW 000.

D. Determination

1) In the calculation of gains on transfer, the actual transaction value, which is the basis for the calculation of gains on transfer, means the actual amount of price for the transaction in itself or at the time of the transaction, not the general market value reflecting the objective exchange values.

2) Therefore, the Plaintiff’s actual transaction value at the time of acquiring the instant real estate is difficult to review the following circumstances, namely, ① the Plaintiff’s payment of KRW 00 according to the instant sales contract, and reimbursement of KRW 00,000, and the Plaintiff’s succession to the obligation to return KRW 000,000,000, the total amount of KRW 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,000,00,00,00 won.

Therefore, the defendant's disposition of this case based on the premise that the acquisition value of the real estate of this case is 000 won is legitimate, and the plaintiff's assertion seeking revocation of the above disposition is without merit

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed. It is so decided as per Disposition.