Seoul Administrative Court 2012Gudan19420 ( October 24, 2013)

2012west0806 ( October 15, 2012)

It is legitimate to calculate the acquisition value with the amount paid to the seller and the amount paid additionally by the intermediate payment, etc.

In light of the seller's transfer value and transaction example of the sale right at the time, it is not possible to recognize the fact that the amount paid to the seller and the amount additionally paid by the intermediate payment, etc. is legitimate as the real acquisition value.

2013Nu14063 Revocation of disposition of imposing capital gains tax

IsaA

The Director of Gangnam District Office

Seoul Administrative Court Decision 2012Gudan19420 decided April 24, 2013

September 26, 2013

October 10, 2013

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The disposition of imposition of the capital gains tax OOOO on June 16, 201 rendered by the Defendant to the Plaintiff on June 16, 201 is revoked (it appears that the above tax amount is included in penalty tax)

1. Quotation of judgment of the first instance;

The reasons why the court should explain in this decision are as stated in the reasoning of the judgment of the court of first instance, except for the addition of the judgment of the plaintiff as stated in Paragraph (2) below, and therefore, it shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional determination

A. Summary of the plaintiff's assertion

If the evidence submitted by the Defendant based on the Plaintiff’s actual acquisition value of the instant real estate is not only a disposal document, such as a taxpayer’s account book or documentary evidence, but also a document prepared by the Defendant. If KimB, the transferor of the right to sell the instant real estate, despite the Defendant’s assertion, submitted a statement to the Anti-Corruption and Civil Rights Commission to the effect that no transfer income tax was reported to the tax authority, the Plaintiff’s actual acquisition value of the instant real estate constitutes a case where the actual acquisition value is not verified by a real investigation. Therefore, the acquisition value of the instant real estate should be determined by conversion acquisition value

B. Determination

(1) In general, due to an error or omission in the final return of tax base by a taxpayer under the Income Tax Act, it shall be based on books or evidence. However, if it is recognized that there is an error or omission in the details of a return by other data and it is possible to conduct a field investigation, it may also be corrected by other data. On-site investigation does not include any special method that can be objectively based on the method of distributing actual income. Thus, if a certain taxation data is based on a certain taxation data, it shall be deemed a lawful field investigation (see, e.g., Supreme Court Decisions 97Nu9895, Mar. 24, 1998; 2003Du14284, Apr. 27, 2004).

In addition, since the tax authority bears the burden of proving the legality of taxation, including the transfer income tax base, as a matter of principle, the tax authority bears the burden of proving necessary expenses. However, deduction of necessary expenses is more favorable to the taxpayer, and most of the facts constituting the basis of necessary expenses are located in the controlled area of the taxpayer. Thus, if it is reasonable to have the taxpayer prove the existence of necessary expenses in consideration of the difficulty of proof or equity between the parties, it is reasonable to deem that the taxpayer has the burden of proving the existence of necessary expenses (see, e.g., Supreme Court Decisions 91Nu1099, Jul. 28, 1992; 2013Du406, Apr. 11, 2013).

(2) However, in light of the following circumstances cited earlier and evidence, i.e., evidence No. 2-1 to 3 of the evidence No. 2-3 of the Defendant’s presentation of the above evidence, and the fact that documents received by public institutions, such as the contents of the report on the right to sell similar goods within the same building as the instant sales right (Evidence No. 3) and the state agencies, are destroyed after a certain preservation period of less than 10 years is set as prescribed by the Acts and subordinate statutes on the management of public records, it is difficult to view that KimB acquired the instant sales right at the tax authorities around May 18, 200 and transferred it to OB-3 of the above fact that the Plaintiff transferred it to OB-2-out after receiving the above OB-out right at the request of OB-out, and that there is no lack of objective evidence to support the Plaintiff’s submission of the above PO-out right to sale within the scope of No. 2-3 to O-out contract, as alleged by the Defendant.

(3) Ultimately, we cannot accept the Plaintiff’s assertion that the instant disposition was unlawful on a different premise.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just as above. Thus, the plaintiff's appeal of this case is dismissed.