Changwon District Court 201Guhap379 (2012.05)

Where the classification of transfer value is unclear at the time of the transfer of a residential complex building.

Since the Plaintiff who transferred a residential and commercial complex building constitutes a case in which the transfer value of the non-taxable house is excessively excessively reported and the distinction between the transfer value is unclear, the instant disposition imposed on the proportional value in accordance with the standard market price is legitimate.

Article 166 of the Enforcement Decree of the Income Tax Act

(C)The revocation of the disposition imposing capital gains tax;

KimA

Head of Changwon Tax Office

Changwon District Court Decision 201Guhap3379 Decided July 5, 2012

November 14, 2013

January 16, 2014

1. The plaintiff's appeal and the changed claim in exchange in the trial are all dismissed.

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

The judgment of the first instance court is revoked. The Defendant’s imposition of the capital gains tax for the year 2009, which belongs to the Plaintiff on May 13, 201, and all the imposition of the capital gains tax for the year 2009, imposed on the Plaintiff on March 2, 2013 (the Plaintiff sought revocation of the imposition of the principal tax and penalty tax for the capital gains tax for the year 2009, which belongs to the Plaintiff (the Plaintiff sought revocation of the imposition of the principal tax and penalty tax for the first instance court from May 13, 2011), and the Defendant, after the judgment of the first instance, revoked ex officio the portion of the previous imposition after the judgment of the first instance court, and subsequently changed the claim to seek revocation of the imposition of penalty tax for the penalty tax for the portion of the first instance court, which was imposed again on March 2, 2013, as above, by exchanging the claim for revocation of the imposition

1. Details of the disposition;

(a) On October 13, 209, the Plaintiff: (a) stated that the sales price of the instant 1 O.O. 2 was 0,000 won; (b) the sales price of the instant 1 O. 2 O. 3 O. 2 O. 3 O. 1 O. 3 O were subject to the instant disposition; (c) the acquisition price of each of the instant 1st to 5th above ground (hereinafter referred to as the “instant commercial buildings, including site ownership”) was 0 O. 1 O. 2 O. 3 O. 2 O on the ground that each of the instant 1st to 5th above ground buildings was subject to the instant disposition; (d) the transfer price of the instant 1st to 6th to O. 1st to 1st to 206 O; and (e) the transfer price of each of the instant 1st to 1st to 1st to 1st to 6th to 1st to 1st to 209.

2. The parties' assertion

A. The plaintiff's assertion

The Plaintiff sold the instant commercial building to PCC, and the instant housing to POC, respectively, and the sales contract was also prepared by dividing the instant commercial building and the instant housing into two copies. Therefore, since the transfer value of the instant commercial building is the actual transaction value, the instant disposition is unlawful.

B. Defendant’s assertion

In fact, the Plaintiff prepared a separate sales contract as if the instant house and the commercial building were sold separately, by taking advantage of the fact that the transfer income tax was not levied by transferring one house for one household when transferring the instant house, even though the entire building of this case was sold to OO won, as if it were sold separately.

3. Related statutes;

"As stated in the Attached-Related Acts and subordinate statutes", 4. Determination

A. According to Article 100 (1) and (2) of the former Income Tax Act (amended by Act No. 9774 of Jun. 9, 2009; hereinafter the same), where the transfer value or acquisition value is calculated based on the actual transaction value, if a person liable to pay capital gains tax submits a sales contract concerning the acquisition and transfer, transaction confirmation, certificate of personal seal impression, etc. as evidentiary documents concerning the actual transaction value, the tax authority shall calculate gains from transfer based on the actual transaction value on each of the above evidential documents unless there are special circumstances, such as that each of the above evidential documents has been prepared differently from the actual transaction value (see Supreme Court Decision 95Nu3183, Jun. 25, 1996); however, even if the transfer value or acquisition value is calculated based on the actual transaction value, if the land, building, etc. is acquired or transferred along with the land and the distinction between the land and the building, etc. is unclear, it shall be calculated pro rata in accordance

B. In light of the following circumstances, it is reasonable to view that the Plaintiff prepared a false sales contract for the instant commercial building and the instant housing for the purpose of reducing the burden of capital gains tax, etc., even though the Plaintiff, without distinguishing the sales price of the instant commercial building from the instant commercial building and the instant building from the sales price of the instant housing, in fact, sold the instant building collectively to MaCC and MaD without distinguishing it from the sales price of the instant commercial building and the instant building from the sales price of the instant housing. Thus, the Plaintiff’s assertion is without merit.

1) In the same opportunity from a uniform seller (Plaintiff), PCC and CD purchased the instant commercial building and the instant housing at the same time, and PCC paid the Plaintiff the sales price for the instant building in lump sum.

2) On May 19, 2005, the Plaintiff purchased the instant building from the Kim F, and carried out a real estate rental business. On June 5, 2005, the Plaintiff reported the value (excluding the site price) of the instant commercial building as OOOO(s) upon filing a return on early refund of value-added tax with the Defendant on June 5, 2005, and on May 31, 2007, the standard balance sheet submitted by the Defendant at the time of filing a return on the integrated income tax for 2006, entered the value of the instant commercial building as OOO(s) and the site value of the instant building as OOO(s). Accordingly, the price ratio of the instant building is merely 35% (i.e., the price of the instant building to OO/O/O of the instant building + the acquisition value of the instant building to the extent of 300 won, taking into account the circumstances of the instant building (i.e., the price of the instant building to the extent below O3O.

3) The officially announced price of the instant house was the OO members at the time of the Plaintiff’s acquisition of the instant house, but was lower than the OO members at the time of the sale of the instant house, and the market price (appraisal) of the instant house around October 13, 2009, which was the date of the sales contract, was the level of OO members. Thus, it is considerably lower than the sales price of the instant house claimed by the Plaintiff, since it was considerably lower than the OO members.

C. Therefore, the instant disposition that calculated the transfer value of the instant commercial building pursuant to Article 100(2) of the former Income Tax Act on the premise that the transfer value of the instant commercial building falls under the case where the Defendant’s distinction between the transfer value is unclear is lawful.

5. Conclusion

Therefore, the plaintiff's claim of this case is dismissed in its entirety as it is without merit. Since the plaintiff's appeal about the part of the principal capital gains tax in the judgment of the court of first instance is legitimate, it is dismissed as it is without merit. The plaintiff's claim for a change in exchange in the trial (the portion of additional income tax) is dismissed (the lawsuit seeking the cancellation of the disposition imposing additional tax during the original disposition is withdrawn due to the exchange change in the lawsuit filed in the trial and the judgment of the court of first instance becomes null and void) and it is so decided as