Seocho 2012west 4790 ( October 11, 2013)

In calculating the acquisition value of real estate acquired through payment in kind, the burden of proof of the loan exists on the plaintiff.

In calculating the acquisition value of the real estate acquired through payment in kind for the loan, it is alleged that not only the loan agreed but also the investment loss compensation obligation should be included in the acquisition value, but the burden of proof exists

Article 97 (Calculation of Necessary Expenses for Transfer Income)

2013Gudan52349 Revocation of Disposition of Imposing capital gains tax

KoreaA

Head of Central Tax Office

March 12, 2015

May 7, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of the capital gains tax of 2008 against the Plaintiff on August 6, 2012 is revoked.

1. Details of the disposition;

A. On November 21, 2008, the Plaintiff acquired a building not registered on the land of this case (hereinafter referred to as “instant building”) from the lowestB, and the building not registered on the land of this case (hereinafter referred to as “instant building”) from the YellowCC. Since then on December 24, 2008, the Plaintiff sold the instant land and the instant building to Gohap, and completed the registration of ownership transfer on the instant land on December 26, 2008.

B. Since then, the Plaintiff filed a preliminary return on the tax base of capital gains with the acquisition value and transfer value of the instant land as each OO.

C. On August 6, 2012, the Defendant issued a notice of correction and notification of the capital gains tax OO calculated by deeming the acquisition value of the instant land as an OOO.

D. On November 5, 2012, the Plaintiff appealed and filed a claim with the Tax Tribunal. Around March 11, 2013, the Tax Tribunal rendered a decision that “the acquisition value of the instant land shall be determined as an OO member and the tax base and the tax amount shall be determined.” The Defendant, according to the said decision, notified the Plaintiff of the correction and notification of the capital gains tax OO members calculated by deeming the acquisition value of the instant land as an OO member on March 13, 2013.

E. Around January 23, 2015, the Defendant: (a) recognized the amount equivalent to the KRW OO of the leased deposit, which is pending in the lawsuit, as necessary expenses; and (b) subsequently notified the correction and notification of the capital gains tax as the OO of the transfer income tax (hereinafter referred to as “the disposition of this case as of August 6, 2012 revised”).

[Reasons for Recognition] Facts without dispute, Gap 1 through 6 evidence, Eul 1, 2, 3, and 10 evidence, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Around July 2008, LB recommended E to make an investment that it would be entitled to at least the amount of OE’s dividends after three months after acquiring O’s provisional attachment bonds of real estate at auction. E received the provisional attachment bonds on July 14, 2008 and disbursed the Plaintiff’s O’s O’s money receipt of O’s provisional attachment bonds on July 14, 2008. MaximumBB, upon deducting necessary expenses after receiving dividends through an auction, distributed the dividends at a certain rate, and agreed that the investment principal would be compensated for any loss. Since the Plaintiff received O’s O’s KRW in relation to the said investment, the Plaintiff is obligated to compensate the Plaintiff for the loss of O’s O’s loss.

Therefore, the acquisition value of the land of this case shall be deemed to be the OOwon (the Defendant recognized as the acquisition value of the land of this case, the obligation that the largestB was borne by the Plaintiff, etc. at the time of the Plaintiff’s acquisition of the land of this case) + OOwon (the obligation to compensate for investment funds related to the acquisition of the above provisional attachment claim).

2) If it is impossible to confirm the actual transaction price at the time of acquiring the instant land, the transfer income tax shall be calculated on the basis of the standard market price at the time of acquisition under the proviso of Article 97(1)1 (a) of the Income Tax

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) According to relevant Acts and subordinate statutes, in calculating capital gains tax, the acquisition value is in principle calculated based on the actual transaction price required for the acquisition of assets. The actual transaction price, which is the basis for calculating capital gains, is not the general market price that reflects the objective exchange value, but the actual transaction price itself or at the time of the transaction (see, e.g., Supreme Court Decisions 97Nu6629, Feb. 9, 199; 2006Du7171, Apr. 26, 2007).

In full view of the overall purport of the arguments in the statement No. 7-1 and No. 2 of the evidence No. 7-1 and No. 7-2, the largestB made a registration of ownership transfer on the land of this case to the plaintiff or JE as payment for the debt to be borne by the plaintiff or JE, and the debt to be borne by the most BB at the time of transfer of the land of this case to the plaintiff by the plaintiff or JE is recognized as OO. In accordance with the above facts of recognition, it is reasonable to deem that the actual amount agreed in return for payment at the time of the plaintiff's acquisition of the land of this case should be included in the acquisition value (the plaintiff asserts that the amount of the investment compensation liability, other than the above debt, should also be included in the acquisition value, but since there is no evidence to acknowledge that there is an agreement between the most BB and the plaintiff or JE to compensate for investment losses, this part of the plaintiff's argument in this part of the

2) In addition, as seen earlier, the actual transaction price required for the acquisition of the instant land was confirmed, and there was no evidence to deem that the Plaintiff acquired the instant land before December 31, 2006, so long as it is impossible to verify the actual transaction price at the time of acquisition, there is no room to apply the provisions of the law governing the method of calculating acquisition price and the provisions of Article 97 (1) 1 (a) of the former Income Tax Act (amended by Act No. 9270 of Dec. 26, 2008). Therefore, the Plaintiff’s assertion on a different premise is without merit without further review.

3. Conclusion

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