National High Court Decision 2013J0561 (Law No. 10, 2013)

The disposition of this case is not unlawful on the ground that the actual transaction price is lower than the standard market price or market price.

The actual transaction price refers to the actual transaction price between the transferor and the transferee at the time of transfer of assets subject to capital gains tax, and it can be different from the general market price reflecting objective exchange values.

Article 96 of the Income Tax Act (Calculation of Necessary Expenses in Transfer Income)

2013Gudan4211 Transfer Detailed and Revocation of Disposition

AA

O Head of tax office

on October 2014 20, 201

October 15, 2014

1. The plaintiff's claim is dismissed.

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

The Defendant imposed an OOO on the Plaintiff on February 1, 2012, imposition of capital gains tax for the year 201.

The cancellation shall be revoked.

1. Details of the disposition;

1. Details of the disposition;

A. BB completed the registration of transfer of the entire shares of the co-owners (CC and DDD source in the case of this case hereinafter referred to as "the building of this case") on the first floor of the store No. 103 (No. 103), the first floor of the store No. 104 (No. 66.30 square meters; hereinafter referred to as "No. 104") on December 26, 2001, No. 13020, the receipt of No. 13020, Sept. 201, 201, each co-owner (CC and DD source) completed the registration of transfer on September 20, 201 (hereinafter referred to as "the building of this case in the case of this case and subparagraph 103 and 104 together).

B. On March 27, 2002, the Plaintiff completed each of the registration of ownership transfer (hereinafter “the registration of ownership transfer”) based on the sale on March 20, 202, from No. 46688, Mar. 27, 2002, as to the instant commercial building.

C. On February 23, 2011, the Plaintiff completed the registration of transfer of ownership with the EE for sale on January 14, 201 (the transaction value of O0 million won; hereinafter referred to as the “transfer of this case”) under the Act No. 15652, Jun. 23, 201, the Plaintiff completed the registration of transfer of ownership on January 14, 201.

D. On February 23, 2011, the Plaintiff completed the registration of ownership transfer for EE on the grounds of sale (O00 million won) on January 14, 201, the Plaintiff completed the registration of ownership transfer for EE on the grounds of Ansan-Support No. 15653, which was received on February 23, 2011.

E. On May 2, 2011, the Plaintiff: (a) calculated gains from the transfer of the instant transfer as the transfer value O00 million won and the acquisition value as the OO00; and (b) reported and paid KRW O0 of capital gains tax.

F. On February 1, 2012, the head of the OO tax office calculated the transfer gains by taking the transfer value of the instant transfer as the O00 million won and the acquisition value as the OO0, and then imposed an OO of capital gains tax (hereinafter referred to as the “instant disposition”) upon the Plaintiff.

G.O tax secretary in charge of the Sungnam-si District District Office among the areas under the jurisdiction of the Otax secretary, on April 3, 2012

New establishment was made.

H. On January 4, 2013, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but was dismissed on June 10, 2013.

I. On September 10, 2013, the Plaintiff filed a lawsuit seeking revocation of the instant disposition with the head of the OO head of the tax office who succeeded to the authority related to the instant disposition after the instant disposition was issued pursuant to the proviso to Article 13(1) of the Administrative Litigation Act.

[Reasons for Recognition] Facts that there is no dispute between the parties, Gap evidence 1 and 2 (including each number), Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The value of the Plaintiff acquired the instant commercial building from BB is an OO won based on the actual transaction value.

(2) The Plaintiff succeeded to BB the sales price of the instant commercial building, the amount of KRW 00 million from the National Bank of Korea, KRW 00 million from the National Bank of Korea, and KRW 00 million from the lease deposit of the instant commercial building, and appropriated KRW 00 million from the total sum of the down payment and part of the intermediate payment paid by the Plaintiff with respect to the instant 103, and paid the remainder of the instant commercial building, KRW 00,000,000,000 in total, and paid KRW 20,000 in total.

(b) Fact of recognition;

Evidence 8, evidence Nos. 6, 7, evidence No. 10-2 and 3, and the witness

According to the testimony of BB, the following facts can be recognized:

(1) BB paid O0 million won with the subscription price under subparagraph 104 of this case on May 16, 2001. On June 22, 2006, DD et al., the owner under subparagraph 104 of this case, sold O0 in the purchase price of this case (the purchase price is determined as O00 won as the area has increased thereafter).

(2) On June 22, 2001, the Plaintiff from DDR et al., the owner of the instant case No. 103 and one other.

103 No. 103 was sold to the OO(the sales price is determined as the area has increased later).

(3) On June 22, 2001, the Plaintiff paid O0 million won the down payment for the sale price under the instant subparagraph 103.

(4) BB paid O million won on June 22, 2001 as part of the down payment for the sale price under the instant 104.

(5) On September 1, 2001, the Plaintiff paid O0 million won as part of the sale price of the instant No. 103 (this refers to the Plaintiff paid O0 million won in total on two occasions with regard to the sale of the instant No. 103).

(6) BB paid O0 million won as part of the sale price of this case No. 104 on September 1, 2001

(BB paid a total of KRW 0,000,000 on three occasions in connection with the sale of the instant 104.

(7) After the Plaintiff and BB agreed to purchase all of the instant commercial buildings by BB, BB leased the instant commercial buildings to EE in an O,00,000,000,000,000,000,000,000,000

the Commission received the Company directly.

(8) BB acquires No. 103 of this case between DD and one other on September 20, 2001

The sales contract in which the sales price is an OO won was prepared.

(9) BB acquires No. 104 of this case between DD and one other on September 20, 2001

The sales contract in which the sales price is an OO won was prepared.

(10) BB is the commercial building of this case to the National Bank of Korea (hereinafter referred to as the "National Bank").

On December 26, 2001, No. 130241, No. 1302, Dec. 26, 2001, the establishment registration of the first priority collective security right (hereinafter referred to as the “instant collective security right”) was completed, which is composed of the maximum debt amount, the debtor BB, the national bank of the mortgagee, and the national bank of the mortgagee.

(11) On May 21, 2003, the Plaintiff completed the registration of change of the right to collateral security (the amount of the secured obligation of the instant right to collateral security shall be an OOO as of May 21, 2003) with respect to the instant right to collateral security (the amount of the secured obligation of the instant right to collateral security shall be the amount of OO as of May 21, 2003).

(12) The Plaintiff’s receipt on June 5, 2003 to the National Bank of Ansan-do in relation to the instant commercial buildings

No. 776 No. 776 on April 15, 2003, the maximum debt amount due to additional contract, and the debtor

The registration of creation of a mortgage was completed with the second priority priority to the National Bank of the plaintiff and the mortgagee.

C. Determination

(1) To examine the following circumstances, i.e., the facts found prior to the record:

(A) The actual transaction value refers to the actual transaction value between the transferor and the transferee at the time of the transfer of assets subject to the transfer income tax, and it can be different from the general market value that reflects the objective exchange value ( therefore, it is possible that BB transfers to the Plaintiff at a price lower than the amount required in the process of acquiring the instant commercial building)

(B) The Plaintiff did not keep the original copy of the sales contract stating the acquisition value of the transfer of this case as an OO, or a document stating a separate agreement on the payment method of the purchase price as alleged by the Plaintiff.

(C) The fact that BB did not issue and deliver to the Plaintiff a receipt that covers the purchase price of the instant commercial building as the OO.

(D) The fact that the plaintiff himself has altered only the part of the evidence Nos. 5-2 of the plaintiff No. 3-2

(E) The fact that there is no evidence of the balance of the commercial building in this case and the part of the acquisition tax, registration tax, etc.) claimed by BB as the Plaintiff during the process of acquiring the commercial building in this case.

(F) The Plaintiff acquired the ownership of the commercial building of this case on March 27, 2002, while taking over the contract to establish the right to collateral of this case on May 21, 2003, which had been over one year since it was over (it is not known whether the Plaintiff was liable for the interest on the loan granted to the commercial building of this case as joint collateral during the above period, and it is not clear whether the amount of the secured debt of this case was limited at the time of the transfer of ownership of this case).

(G) According to the Plaintiff’s assertion, while BB made a registration of transfer of ownership without being paid the purchase price of the instant commercial building by the Plaintiff, BB did not take measures to secure claims, such as the establishment of a collateral security right or provisional registration, provisional registration, and provisional seizure, to secure the receipt of the remaining purchase price (the measures to secure claims as well as the measures to secure claims and the measures to urge the acquisition of the instant collateral security right or the implementation of the remaining purchase price

(h) The Plaintiff asserted that the Plaintiff paid KRW 20 in some of the sales price of the instant commercial building to BB, but such assertion is inconsistent with the general method of payment in light of the timing and details of payment, etc. (the Plaintiff asserts that interest on the balance of the sales price is included in interest on the balance of the sales price, but there is no assertion or proof as to the interest rate and calculation period).

(i) BB reported the transfer value of the commercial building of this case as the OO in filing a return of its transfer income tax, and attaching a sales contract (No. 3-2), a sales contract (No. 3-3), a confirmation of the fact of transaction (No. 3-3), and the Plaintiff’s certificate of personal seal impression (for the purpose of use, confirmation of the fact of transaction).

(j) The above OOO’s payment made by the Plaintiff to BB is part of the acquisition value of the commercial building of this case, and the statements in subparagraph 6-1, subparagraph 11-1, and witness BB’s testimony are difficult to believe in light of the records in subparagraph 4, which are seen below (no room exists to deem that BB’s strong pressure exists in preparing the evidence in subparagraph 4).

(k) BB on January 16, 2012, in the course of the tax investigation prior to the instant disposition, the person in question shall:

On March 27, 2002, a sales contract was prepared for the transfer of the instant commercial building to the Plaintiff with the amount of KRW 00,000,000, and a sales contract was prepared for the sales amount of KRW 783,000,000, and there was no receipt of money for KRW 00,000,000, and a written confirmation (No evidence No. 4) is prepared in writing, and delivered to a tax official. Considering that the Plaintiff’s transfer of the instant commercial building to the Plaintiff, the instant disposition that calculated the transfer income tax for the amount of

(2) The burden of proof of the existence of the taxation requirement fact is against the tax authority (Supreme Court Decision 2009Du7103 Decided September 24, 2009), and the time of acquisition and transfer of assets shall be the date of liquidation of the price of the assets except in cases prescribed by the Presidential Decree, such as where the date of settlement of the price is unclear (former part of Article 98 of the Income Tax Act), and the date of receipt of registration recorded in the register shall be the date of acquisition if the registration of transfer was made before the settlement of the price (Article 162(1)2 of the Enforcement Decree of the Income Tax Act). In this case, according to the plaintiff's assertion, since the ownership transfer registration of this case was made from BB before the settlement of the price, the date of receipt of the registration of transfer shall be deemed the time of acquisition of the plaintiff, and as to the payment of the price retroactively after the acquisition, the claimant shall be actively responsible for the payment of the price, and there is no evidence to acknowledge that the money transaction of this case was made by the plaintiff between B and B.

(3) In light of the estimated acquisition value using the standard market price publicly notified by the National Tax Service and the estimated acquisition value using the auction appraisal value of the neighboring commercial buildings of this case, the Plaintiff asserted that the acquisition value of the commercial buildings of this case cannot be deemed as an OO as alleged by the Defendant. However, the instant disposition is calculated on the basis of the actual transaction price, and the actual transaction price recognized by the Defendant is lower than the standard market price or the market price, and thus, the Plaintiff’s above assertion is not accepted.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.