Early High Court Decision 201J 2311 (Law No. 15, 2011)

It is not recognized that the additional amount has been paid as the acquisition price of the right to move in.

There is no evidence to prove that the additional amount was paid for the acquisition price of occupancy right in light of the fact that there is no disposal document such as the contract, etc., and that the additional amount was not included in the acquisition price at the time of the preliminary return of transfer income tax, etc.

Article 97 of the Income Tax Act

2011Guhap15931 Partial Revocation of Disposition of Imposition of Capital Gains Tax

KimA

The superintendent of the tax office

May 25, 2012

July 6, 1012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2005 against the Plaintiff on March 16, 201 is revoked.

1. Details of the disposition;

A. The Plaintiff is a member of the OO Housing Association (hereinafter “BB”) established with 60 members to promote a housing construction project in Seongdong-gu Seoul Metropolitan Government OOO 000 and 10 parcels, and BB obtained approval of the housing construction project plan on December 18, 2004.

B. BB, around September 2005, at the same time, transferred the business rights and business site ownership of the above housing construction project to 000 won, and the Plaintiff filed a preliminary return on capital gains tax following the transfer of the above housing construction project right, etc. on November 29, 2005, on which the transfer value was 00 won, and the acquisition value was 00 won, and 000 won, and the necessary cost was 00 won.

C. As a result of a field investigation on BB, the Defendant confirmed the fact that members transferred the above housing construction right, etc. and dissolved the association, and determined the transfer value of KRW 000, and the acquisition value of KRW 000, and necessary expenses at KRW 000, and notified the Plaintiff on March 3, 201, to pay the transfer income tax of KRW 00 (including additional tax) for the transfer income tax for the year 2005 (hereinafter “instant disposition”).

D. The Plaintiff, who was dissatisfied with the instant disposition, filed an objection on March 16, 201 and filed an appeal with the Intellectual Property Tribunal on June 21, 201, but was dismissed on September 15, 201.

[Ground of Recognition] The whole purport of the arguments described in Gap evidence 4, Eul evidence 5, Eul evidence 1, Eul evidence 2, Eul evidence 4 through 6, and Eul evidence 8

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In 202, the Plaintiff acquired the right to move into the housing construction project of BB (hereinafter referred to as “the right to move into the housing construction project of this case”), and paid 000 won to BB in addition to the premium to BB (hereinafter referred to as “the right to move into the housing construction project of this case”). Since BB obtained the approval of the housing construction project plan of December 18, 2004, it is deemed that the right to move into the housing construction project of BB has occurred, and the Plaintiff’s assertion seems to have obtained the right to move into the housing construction project of BB with the premium and the right to move into the housing site of BB. Therefore, the disposition of this case made on a different premise is unlawful.

B. Determination

살피건대， 갑 제1， 2호증의 각 기재에 의하면 2002. 2. 20. 및 2002. 7. 3. 원고의 형인 김QQQQ의 하나은행 계좌에서 이DDD 앞으로 총 000원이 송금된 사실이 인정된 다. 그러나 앞서 본 증거들에 의하여 인정되는 사정에 비추어 보면 이러한 사실만으로 원고가 이DDD으로부터 이 사건 입주권의 취득대금으로 위 000원을 지급하였다고 인정하기 어렵고， 그밖에 갑 제3， 6호증의 각 기재만으로 이를 인정하기 부족하다.

① There is no disposal document that the Plaintiff, including the contract for the transfer of the right to move in in the instant case, acquired the membership from BB, and paid 00 won to D when acquiring the membership of the Plaintiff.

② 원고는 김QQ로부터 위 000원을 빌리면서 직접 이DDD 앞으로 송금하게 한 것이라고 주장하나， 000원을 차용하였다고 볼 만한 자료도 없으며 원고가 김QQ에게 위 차용금을 변제하였다는 자료도 없다.

③ On November 29, 2005, the Plaintiff did not include the above KRW 000 in the acquisition value at the time of the preliminary return of capital gains tax. If the Plaintiff spent KRW 000 as the acquisition price of the occupancy right of this case, there is no reasonable ground for the preliminary return of capital gains tax except for this part. Therefore, the instant disposition against which the Defendant imposed capital gains tax without including the above KRW 000 in the acquisition value is lawful.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.