early 2010 Heavy3091 ( November 22, 2010)

Dispositions imposed by revising the tax base and tax amount of capital gains on the actual transaction price confirmed;

Any report on capital gains tax made by delegation by the plaintiff shall also affect the plaintiff himself/herself, and if the actual transaction price is confirmed, the confirmed value shall be the transfer value or acquisition value and the tax base and tax amount of capital gains shall be corrected.

2011Guhap2393 Disposition of revocation of imposition, including capital gains tax

the United Nations A

○ Head of tax office

July 7, 2011

August 18, 201

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 71,767,860 on the Plaintiff as of July 1, 2010 shall be revoked.

1. Details of the disposition;

A. On May 22, 2002, the Plaintiff acquired three-story neighborhood living facilities and housing located in ○○○○○ Dong, 000 (hereinafter “the instant real estate”). On October 29, 2003, on November 12, 2003, the Plaintiff made a preliminary return on the tax base of capital gains based on the actual transaction price with the transfer value of KRW 400,000,000, acquisition value of KRW 365,000,000, and the tax amount of KRW 1,897,350.

B. After the Defendant transferred the instant real estate to another person, the Defendant conducted a tax investigation with respect to the Plaintiff by reporting the acquisition value of the instant real estate in KRW 535,00,000,000, and determined that the Plaintiff transferred the instant real estate in KRW 535,000 unlike the details of the instant report, and subsequently, on July 1, 2010, the Defendant corrected and notified the Plaintiff of KRW 71,767,860 for the transfer income tax for the year 2003 (hereinafter “instant disposition”).

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 27, 2010, but the said claim was dismissed on November 22, 2010.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 1 to 3 (including paper numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Article 166 (4) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 16664 of Dec. 31, 199) provides that "a case of acquisition or transfer of real estate by unlawful means, such as preparation of a false contract, false transfer of resident registration, etc., for the purpose of evading tax burden as an exception to the principle of standard market price taxation, where the transfer value is based on the actual transaction value."

However, the Plaintiff merely delegated all tax returns, etc. to her husband, tax agent, etc., and affixed seals on documents at the request of her agent. There was no false contract and no transfer income tax was reported for the purpose of evading transfer income tax. Even if the Plaintiff submitted a false contract as evidentiary document when reporting the transfer value of the real estate of this case as the actual transaction price, this does not constitute cases stipulated in the above Acts and subordinate statutes. Thus, even though the transfer value of the real estate of this case should be based on the standard market price, the disposition of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) In full view of the above evidence and evidence evidence evidence Nos. 4 and the purport of the entire pleadings, the sales contract submitted by the MediationA upon the report of transfer income tax return by the MediationA, stating that the Plaintiff sold the real estate of this case to the MediationA in KRW 535,00,000 and the broker’s rightB mediated the above sales, while the sales contract submitted by the Plaintiff was entered into a mutual agreement without a broker at KRW 400,000,000,000. However, not only the above ChoAB’s rightB but also the Plaintiff’s husband, the above sales contract was entered into a contract through a brokerage office. Accordingly, according to these facts, it is reasonable to deem that the actual transaction price that the Plaintiff transferred the real estate of this case to the Plaintiff is not KRW 400,000,000, but also KRW 535,000,000, which is the purchase price under the sales contract submitted by the MediationA.

As to this, the Plaintiff alleged to the effect that he was not responsible for the above report since he delegated the report of capital gains tax to her husband or tax agent. However, in light of the fact that the Plaintiff transferred the real estate of this case as the owner of the real estate of this case and thereafter the scheduled return of capital gains tax was made under the name of the Plaintiff, it is difficult to deem that the Plaintiff did not participate in the above declaration at all, and the agent’s act by delegation of the Plaintiff also affects the Plaintiff himself. Thus, the Plaintiff’

(2) In addition, Article 166 (4) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 16664 of Dec. 31, 1999), which states that the Plaintiff should follow the market price based on the standard market price not based on the actual transaction price revealed that the transfer value of the real estate in this case is not the actual transaction price. In addition, Article 166 (4) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 16664 of Dec. 31, 1999), which states that the Plaintiff does not fall under the exception of the principle of taxation of the standard market price in this case, is deleted by Presidential Decree No. 16664 of Dec. 31, 199 and is not applicable to this case (amended by Presidential Decree No. 7006 of Dec. 30,

Meanwhile, Article 96 (1) 6 of the Income Tax Act (amended by Act No. 7006 of Dec. 30, 2003) which was applied at the time of transfer of the real estate of this case provides that "where the transferor files a return on the actual transaction price at the time of transfer and the time of acquisition to the head of the district tax office having jurisdiction over the place of tax payment by the due date of final return under Article 110 (1) along with evidential documents, the transfer price shall be based on the actual transaction price." Article 114 (4) provides that "Where the resident files a preliminary return or final return on the tax base of transfer income under Article 96 (1) 6 and the head of the district tax office having jurisdiction over the place of tax payment or the head of the district tax office having jurisdiction over the place of tax payment has confirmed the actual transaction price different from the fact, the transfer price of the real estate of this case shall be 400,000,000,000 won prior to the due date of final return under Article 110 (360).1).

3. Conclusion

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