The acquisition value for the conversion price is legitimate on the ground that the actual acquisition value is not known.

It is legitimate to impose tax on the taxpayer for the reason that the actual acquisition value cannot be confirmed even if the documents are submitted by the taxpayer.

Article 97 (Calculation of Necessary Expenses for Transfer Income)

2018Guhap20086 (2018.06.07)

○ Kim

○ Head of tax office

on 06 October 07, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Transfer income tax (Additional Tax 56,752,276 won) paid to the Plaintiff on July 1, 2017 by the Defendant against the Plaintiff on July 1, 2017

(including) revoke each disposition of 14,221,480 won of local income tax.

1) The Plaintiff stated the date of disposition as " July 4, 2017," but appears to be a clerical error.

1. Details of the disposition;

A. The Plaintiff purchased the pertinent real estate from ○○○, Ma○, and Ma○○○, Ma○○○, ○○○-dong, 862-1, and 793 square meters (hereinafter “instant real estate”) and completed the registration of ownership transfer on October 14, 2004, on the ground of sale and purchase on October 12, 2004. After that, the Plaintiff sold the instant real estate to ○○, the Plaintiff sold the instant real estate to ○○, and completed the registration of ownership transfer on January 5, 2012, on the ground of sale and purchase on December 27, 2011.

B. On April 2, 2012, the Plaintiff reported and paid KRW 11,350,560,560 as the transfer value of the instant real estate, and the acquisition value of KRW 456,456,00 (purchase value of KRW 456,00,000 and registration tax of KRW 456,00).

C. From April 27, 2017 to May 16, 2017, the Defendant conducted an on-site investigation of the Plaintiff’s capital gains tax on the Plaintiff. The acquisition value reported by the Plaintiff is higher than that of the surrounding land, and the instant real estate is higher than that of the surrounding land.

The court determined that the actual transaction price at the time of acquiring the real estate in this case was unclear on the ground that there was no specific and objective evidence, such as financial data proving that the real estate was acquired through the acquisition

C. Accordingly, the Defendant on July 3, 2017, pursuant to Article 97(1)1(b) of the former Income Tax Act, to the Plaintiff.

As to the real estate in this case, the conversion price of KRW 205,573,770 shall be the acquisition price in 2012:

In addition, 142,214,860 won of transfer income tax (including additional tax), 14,221,486 won of local income tax was corrected and notified (hereinafter referred to as "disposition of this case").

D. The Plaintiff, who is dissatisfied with the instant disposition, filed an administrative appeal on September 13, 2017, but filed an administrative appeal on September 2017.

11.30. The dismissal was made.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 9, 10, 11, Eul evidence Nos. 20, 22, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) The Plaintiff actually paid the transferor the purchase price of KRW 456,00,000 to acquire the instant real estate. Nevertheless, the Defendant denied the acquisition price reported on the ground that there is no financial data proving that the purchase price was paid, and determined that it constitutes a case where the actual transaction price cannot be confirmed at the time of acquisition and disposed of the instant disposition based on the conversion price as the acquisition

2) At the time of filing a transfer income tax report on April 2, 2012, the Plaintiff was asked to the seller whether or not the Plaintiff paid the purchase price in cash, or was demanded to submit any supporting material, and there was no place in which the Plaintiff did not state the payment in cash in the application column. Considering such circumstances, it is unreasonable to impose additional tax on the Plaintiff on the ground that there was a justifiable reason that the Plaintiff could not criticize

3) The instant disposition was made at the expiration of five years from December 15, 201, and the exclusion period was exceeded.

B. Relevant statutes

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

C. Determination

1) Determination as to whether it constitutes a case where the actual transaction price cannot be confirmed

A) It is true that the sales contract prepared by the Plaintiff and ○○○, etc., entered the instant real estate sales price in KRW 456,00,000 (Evidence A) and the appraiser’s door ○○, which assessed the market value of the instant real estate as KRW 424,25,00 on September 21, 2004.

B) However, in light of the following circumstances acknowledged by Gap evidence Nos. 4, Eul evidence Nos. 7 through 19, and the purport of the testimony and the whole pleadings, it is difficult to find that the plaintiff acquired the real estate of this case in 456,00,000 won solely on the basis of the above facts, and it is reasonable to deem that the actual transaction price of the real estate of this case cannot be confirmed.

① On September 15, 2004, the Plaintiff entered an application for permission for land transaction contract submitted to the competent administrative agency on September 15, 2004 in KRW 59,00,000 to obtain permission for a land transaction contract at the time of purchase of the instant real estate from ○○, etc.

② Around 25,11,635 won (total amount of KRW 75,334,905), each of the instant real estate sold to the Plaintiff, ○○○, ○○, and ○○○, ○○, respectively, filed a return on capital gains tax.

③ According to the appraisal and assessment conducted by the Plaintiff to obtain a loan of the instant real estate as collateral around August 2010, the value of the instant real estate was assessed as KRW 251,970,000 at the time of appraisal.

This appraisal value is the amount lower than the market value of the real estate in this case appraised by ○○ on September 21, 2004 by the appraiser on the basis of the appraiser on September 21, 2004.

④ The instant real estate was released from a development-restricted zone on August 26, 2004, and was designated as a residential area around 2007.

⑤ The officially announced value of the instant real estate was KRW 95,00 as of January 1, 2004, and was KRW 161,000 as of January 1, 2005, and KRW 218,00 as of January 1, 2006, and was KRW 262,00 as of January 1, 2012.

(6) The Plaintiff submitted the Plaintiff’s evidence as to the fact that he actually paid the purchase price of KRW 456,00,000 to the transferor. However, each of the above evidence alone cannot be confirmed that the purchase price of the real estate owned by ○○ was actually used as the purchase price of the real estate in this case, and the Plaintiff did not submit objective data to acknowledge that the Plaintiff actually paid the transferor the purchase price of KRW 456,00,000, which is otherwise alleged by the Plaintiff.

7) In light of the fact that the court testified that the transferor sold the instant real estate at a low price and paid 35 million won only by selling the real estate, it is difficult to believe that part of the witness ○○○ witness’s testimony, consistent with the Plaintiff’s assertion, when the court testified that the amount of the purchase price was KRW 400 million, and that it was consistent with the Plaintiff’s assertion that the sales price was KRW 400,000,000,000,000,000,000 won.

C) Therefore, deeming that the Defendant’s actual transaction price at the time of acquisition falls under a case where it is impossible to confirm the actual transaction price at the time of acquisition, and that the acquisition price of the instant real estate is calculated by the conversion price under Article 97(1)1 (b) of

2) Determination on the imposition of additional tax

In cases where a taxpayer fails to report or pay all or part of the transfer income tax at the time of the provisional return on the profits accruing from the transfer of a tax base, and fails to make the final return on the tax base by the deadline for the final return on the tax base, an additional tax on negligent return and an additional tax on additional tax may be imposed on a legitimate tax exceeding the amount of tax voluntarily reported and paid after the deadline for the final return on tax base (see, e.g., Supreme Court Decisions 94Nu14551, Jun. 30, 1995; 96Nu18465, Aug. 29, 197). Under tax law, an additional tax is an administrative sanction imposed as prescribed by the Act where a taxpayer violates various duties, such as a return and tax payment, without justifiable grounds, to facilitate the exercise of the right to impose tax and the realization of a tax claim, and the taxpayer's intentional and negligent

It does not constitute a justifiable ground that is not attributable to the violation (Supreme Court Decision 2004 June 24, 2004).

Supreme Court Decisions 2002Du10780, Feb. 1, 2008; 2007Du2524 Decided February 1, 2008.

In light of the above legal principles, it is difficult to find that the Plaintiff’s report on the transfer income tax of the instant real estate was a justifiable cause not attributable to the Plaintiff’s breach of duty to report and pay taxes solely on the ground that the Plaintiff thought that there was no problem without being asked about whether the actual transaction price was paid in cash, which entered differently from the actual transaction price. The Plaintiff’s assertion on this part is without merit.

3) Determination as to whether the exclusion period has lapsed

A) Article 26-2(1) of the Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013) provides for the exclusion period for the imposition of national taxes. Article 26-2(1) of the same Act provides for the exclusion period for the imposition of national taxes: (a) 10 years from the date on which the national tax is assessable if a taxpayer obtains tax deduction by deceit or other unlawful means; (b) 7 years from the date on which the national tax is assessable if a taxpayer fails to file a tax base return within the statutory due date of return; and (c) 5 years from the date on which the national tax is assessable if a taxpayer does not fall under subparagraphs 1 and 2; and (d) 1 of Article 12-3(1) of the Enforcement Decree of the Framework Act on National Taxes provides for the date on which a national tax may be assessed, and Article 110(1) of the Income Tax Act provides for the resident having any transfer income in the year concerned, from May 1 to 31 of the year following.

(1) The Act provides that the Corporation shall

Therefore, as a matter of principle, the exclusion period for imposition of capital gains tax on transfer of assets is from June 1 of the following year from the time when the deadline for the final return on the tax base expires. Meanwhile, according to Article 98 of the Income Tax Act, the transfer period of assets shall, in principle, be the date the price of the assets is settled: Provided, That if the date the payment is settled is unclear, the transfer receipt date recorded in the registration, etc. pursuant to Article 162 (1) 1 of the Enforcement Decree

B) According to the evidence evidence No. 2, the Plaintiff’s sales of the instant real estate to ○○○○ and determined the remainder payment date as December 15, 201.

However, the above facts and the following facts acknowledged by the evidence as follows: (i) the date of the transfer of the instant real estate was entered on January 5, 2012 when the Plaintiff voluntarily filed a preliminary return of transfer income tax on April 2, 2012; (ii) the obligation of the buyer to pay the balance in the real estate transaction and the seller to perform the obligation to transfer ownership registration; (iii) there is no special circumstance in which the transfer registration of ownership is not made on December 15, 201 if the payment was made in full as alleged by the Plaintiff on December 15, 201, and (iv) the Plaintiff did not submit data by which the date of the settlement of the real estate sale price is known, in light of the following: (i) since the date on which the payment was received in accordance with Article 162(1)1 of the Enforcement Decree of the Income Tax Act is unclear, it is reasonable to deem the transfer date as the date of receipt of the registration date.

C) Therefore, the exclusion period for imposition of capital gains tax on the transfer of this case shall begin on June 1, 2013, and it is apparent that the disposition of this case was taken before five years thereafter, so this part of the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so ordered as per Disposition.

partnership.