National High Court Decision 201J 3051 ( December 21, 2012)

The balance is included in the money that the plaintiff paid as part payments.

The entries in the receipt and the receipt prepared by the purchaser are insufficient to recognize that the plaintiff paid the amount of the receipt to the purchaser on the same day, and there is no other evidence to acknowledge it.

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

2013 old-gu 1670 Assignment Detailed and Revocation of Disposition

AA

o Head of the tax office

on December 22, 2014

December 12, 2014

1. On January 11, 2013, the Defendant’s imposition disposition of the capital gains tax for the year 2004 imposed on the Plaintiff on the Plaintiff on the January 11, 201, in excess of the OO members, and the imposition disposition of the capital gains tax for the year 2010 imposed on the Plaintiff on May 1, 201, in excess of the OO members, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. 9/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Of the imposition of the capital gains tax for the year 2004 imposed on the Plaintiff on January 11, 2013 and the imposition of the capital gains tax for the year 2010 imposed on the Plaintiff on May 1, 2011, the part exceeding the KRW OO in excess of the imposition of the capital gains tax for the year 2010 shall be revoked (to the extent that it does not go against the intent of the relevant party, the part of the disposal date

1. Details of the disposition;

1. Details of the disposition;

(a) Process of land partitioning and registration conversion;

1) On June 1, 2004, an OO-dong O-dong OO-dong OO-dong O-dong O-dong O-dong O-dong O-dong O-dong O-O-dong O-dong O-dong O-dong O-dong 8,06 square meters (hereinafter “the instant land”) was divided into 8,066 square meters, such as O-1 forest and 8,066 square meters, and O-2 forest and 8,066 square meters.

2) The same O-1 forest and 8,066 square meters were divided into O-1 forest and 8,105 square meters on August 24, 2005. The same O-1 forest and 8,105 square meters were divided into O-1 forest and 8,105 square meters on October 13, 2005; O-1,652 square meters on the same O-1 forest and 652 square meters; O-3 forest and 1,600 square meters in the same O-4 forest and 1,600 square meters; O-4 forest and 1,600 square meters in the same O-5, 653 square meters in the same O-61,61,60 square meters in the same O-1,652 square meters in the same O-1,652 square meters in the same O-1,600 square meters in the same O-1,6060 square meters in the same forest and 163650 square meters in the same O-1.

3) On February 23, 2005, the same O-2 forest land of 8,066 square meters was divided into O-2 forest of 7,519 square meters in the same O-2 forest of O-3 forest of 547 square meters in the same O-2 forest of O-7,519 square meters in the same O-2 forest of 7,519 square meters in the same 7,519 square meters in the same 7,519 square meters in the same O-2 forest of O-2 forest of O-2 forest of 7,53

B. As to the instant land between BB, CCC, and DD on April 20, 2004

In the name of FF, a trade contract was concluded in the name of FF.

C. On April 2004, the Plaintiff: (a) around the end of April 2004, O00 KRW 00,000 per square meter of the instant land with GG.

OO0,000 won was to be sold.

D. The same OO-1 Forest land, 8,105 square meters, and 0O-2 forest land of 7,536 square meters was designated as a land transaction permission area from around 2001 to around 2009. According to Article 530 of the Ministry of Construction and Transportation’s Directive on Land Transaction Business Handling Regulations, land for forestry without harvest of forest products could not be purchased and sold or transferred to others before five years elapse from the date of acquisition. As such, since the land acquired by BB, CCC, and DD was more than five years after the lapse of five years from the date of acquisition, the transfer registration of ownership in the name of FF was completed as of October 8, 2008 for each of the above land.

E. Meanwhile, on July 5, 2010, the same OO-1 Forest Land was sold to OOO-2 Forest Land for compulsory auction on the same OO-2 Forest Land 8,105 square meters. On August 13, 2010, OO-2 Forest Land 7,536 square meters was sold for compulsory auction at OO-2 Forest Land for the same time on August 13, 2010 (hereinafter “the instant land 2”).

F. On October 8, 2010, the Plaintiff reported the transfer value of the land No. 2 in FF’s name as KRW O00,000,000, and KRW O00,000,000,000.

G. As a result of the tax investigation, the Director of Central Regional Tax Office determined the acquisition value of the land of this case as KRW 00,000,000 (the acquisition value + KRW 00,000,000,000,000,0000,0000,0000,0000,0000,0000 won

H. Accordingly, on May 1, 201, the Defendant decided and notified the Plaintiff of the capital gains tax of 2004 and the capital gains tax of OO in 2010.

(i) On December 20, 2012, the Plaintiff filed an appeal with the Tax Tribunal. On December 20, 2012, the Tax Tribunal deemed the transfer value of the transfer income tax for the year 2004 as KRW O00,000,000, not KRW O00,000, and decided to dismiss the claim regarding the transfer income tax for the year 2010. Accordingly, on January 11, 2013, the Defendant issued a decision to rectify the transfer income tax for the year 204 as KRW O0 from KRW O0, and notified the Plaintiff thereof.

Facts that there is no dispute over recognition, Gap evidence Nos. 1, 2, 3, 11, Eul evidence Nos. 1, 2, 3, 5, and 12, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Acquisition value of the instant land

The Plaintiff paid KRW OB to BB as follows with the purchase price for the instant land.

As to the acquisition value of the instant land, the Defendant made the instant disposition on the premise that it is KRW O0,000,000, but in fact, only KRW O00,000,000 for each land is divided by group of land, the acquisition value of the instant land 1 is KRW O0 (O00 KRW x 1/3) and the acquisition value of the instant land 2 is O0 (O00 KRW x 2/3 + O0).

2) The transfer value of the instant land No. 1 and the transfer income tax due to the sale and purchase of the instant land

A) On April 2004, the Plaintiff: (a) around the end of April 2004, sold the instant land to GG with the purchase price of KRW O00,000; and (b) completed the registration of ownership transfer with respect to the instant land No. 1 at the request of GG on May 2004.

B) However, the Plaintiff received only a part of the purchase price from GG, and part of the instant land was a land transaction permission area, and the ownership transfer registration was not easy due to the land transaction permission area, and due to these circumstances, the Plaintiff rescinded the said sale contract with GG on February 2005.

C) While cancelling the above sales contract, the Plaintiff decided to succeed to the obligation to transfer the ownership of the instant land from GG, and the Plaintiff agreed to succeed to the obligation to transfer the ownership of the instant land, and the amount that the Plaintiff received from GG sales amount was KRW 00 million, which led to the occurrence of KRW 00 million. However, the difference between the Plaintiff and the Plaintiff was exempted from the sales contract, taking into account the relationship with the Plaintiff. Meanwhile, the Plaintiff appropriated the price for the instant land No. 1 as KRW 000,000,000,000, to the KRW 00,000,000,000.

D) Therefore, the Plaintiff did not have any transfer income from selling the instant land to GG, and thus, the transfer value of the instant land is zero (O) and this part of the disposition imposing the transfer income tax is unlawful.

Meanwhile, according to the testimony of GG, the transfer value of the portion of the land No. 1 of this case was calculated as KRW 00 million or KRW 00 million, so it shall not exceed KRW 00 million at least.

3) The transfer value of the instant land No. 2 and the transfer value of the instant land No. 2 arising from the purchase and sale of the instant land No. 2 is KRW O0 million, which is the successful bid value of the instant land No. 2, and the acquisition value is KRW O0,000,000, as seen earlier, so the transfer value difference is deemed an O0 won, and if the transfer value is calculated on the premise that it is based on such premise, O0 won shall be deemed an O0,000 won. Therefore, the part exceeding the said amount among the dispositions

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) We examine acquisition value.

A) Facts of recognition

(1) On April 20, 2005, the sales contract for the land of this case between BB and two other parties is the seller, and FF is the buyer, stating that the purchase price shall be KRW 00 million, and BB shall sell and purchase access roads at the market price.

At the time of the purchase and sale contract with the Plaintiff, BB, etc., the Plaintiff participated as the intermediary by JJ as the broker, and the BB as the broker. As to the purchase price of the instant sales contract, the purchase price shall be determined as KRW O00,000, and the down payment KRW O00,000 shall be paid on the date of the contract, and the remainder O00,000,000 won shall be paid until June 20, 2004, and O0,000 won shall be paid in cash, and O0,000 won shall be paid in cash, and O0,000 won shall be succeeded to the bank loan

Secondly, the details of the Plaintiff’s payment of money to BB are as follows.

Facts having no dispute over recognition, Gap evidence Nos. 4, 5, 8, 9, 10, 11, 13, Eul evidence Nos. 4, 7, and 8, and the purport of the whole pleadings

B) Determination

(1) According to the above facts, the sum of money paid by the Plaintiff to BB et al. from April 20, 2004 to July 6, 2005, including payment in kind, was paid by the Plaintiff to BB et al., and the amount paid by the Plaintiff to BB et al. on May 31, 2004, OO on August 23, 2004, OOO on September 18, 2004, OOOO on October 18, 2004, and OOOOO on August 22, 2008, should be included in the actual transaction price (see, e.g., Supreme Court Decisions 2000OO26, Mar. 26, 2003; 2000OO28, etc.).

She claimed that the plaintiff paid O00 million won as part payments on May 4, 2004, rather than O00 million won.

In full view of the purport of Gap evidence No. 6-1 and the whole arguments, Eul prepared a receipt to the effect that the plaintiff received the O00 billion won as the purchase price.

However, comprehensively taking account of the overall purport of evidence Nos. 3-1, 2, 7-3, 4, 18, and 20 of the evidence Nos. 3-2, 7-3, 4, 18, and 20 of the above evidence and the oral argument, B-B completed the registration of creation of a collateral for the land of this case on Oct. 19, 2002, the maximum debt amount of O0 million won, and the bank holding the right to collateral security (which seems to be equivalent to O00,000 won). BB, upon receipt from the plaintiff as to the above receipt, was able to succeed to bank loans of O0,000,000 won after the receipt of O0,000,000 won, 2B-2,000,000 won was not succeeded to due to the subsequent reduction of loans, and there was no other evidence to acknowledge that the Plaintiff made payment of the above 400,000,000 won.

Article 22(1) of the Civil Act provides that the Plaintiff shall be granted a certificate of 10 million won from GGG on May 12, 2004, and the Plaintiff shall be granted a certificate of 10 million won on May 12, 2004, in full view of the following: (a) the Plaintiff shall be granted a certificate of 100 million won from the GG on May 12, 2004; (b) however, there is no other evidence to acknowledge that the Plaintiff exchanged the above certificate of 100 million won with a check of 100 million won on the face value; and (c) there is no other evidence to prove otherwise.

2) The transfer value of the instant land No. 1 and the transfer income tax due to the sale and purchase of the instant land

A) Facts of recognition

(1) On April 2004, the Plaintiff entered into a sales contract with GG by setting the instant land as KRW 10,000,000,000,000,000,000,000,000,000,000,000.

SheGG sold to 11 persons, including HH, the land of this case where ownership transfer can be made between April 2004 and May 2004 by dividing the land of this case into the total purchase price of KRW O00,000,000, and 11 persons, including HH, completed the registration of ownership transfer in the form of transfer of ownership by the original seller DD in the name of HH on July 23, 2004.

Meanwhile, GG resell sold part of the land of this case to other buyers, including LL, MM, and III. However, if part of the land of this case was a land transaction permission area and the ownership transfer registration was not made, some of the above buyers requested the rescission of the contract, and when the sale price received from the above buyers should be returned, it would be decided to terminate the sale contract of the land of this case between the Plaintiff and the Plaintiff, and the Plaintiff would bear the ownership transfer registration, etc. of the above buyers, and the expenses incurred therefrom would be settled after the settlement.

Facts without any dispute, Eul's 13 and 14, Gap's 13, 15, Eul's 11 and 17, and the purport of the whole pleadings and arguments.

B) Determination

(1) In the instant case where the Plaintiff filed a complaint by fraud, etc., GGG paid KRW 00 million out of KRW 000,000,000,000,000 of the purchase price, and the remainder of the purchase price was succeeded to KRW 100,000,000,000 of the secured debt of the right to collateral security established on the land of this case. The investigation agency asserted that the Plaintiff and GGG paid KRW 100,000,000,000,000,000 were suspected of having been paid out of the purchase price, on the grounds of the fact that the Plaintiff and GGG were aware of the fact that KRW 10,000,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00).

D. The Plaintiff asserted that the purchase price of the part of the land No. 1 of this case was KRW 00 million, and that the purchase price constitutes KRW 750 million or KRW 800,000,000,000 or KRW 7500,000,000. However, there is no evidence to acknowledge it, or there is no other evidence to acknowledge it.

On the other hand, the plaintiff and GG stated that the investigative agency set the purchase price of the land of this case as O00 million won (O00 million won x O00 won). The plaintiff et al. stated that the plaintiff et al. stated that the purchase price of the land of this case as O0 million won or O00 million won in the investigative agency, but it is not known of the grounds calculated with the above amount, and that the above statement was only two times, it is nothing more than that of O00,000 won. Thus, the purchase price of the land of this case shall be deemed an O00,000 won, and the purchase price of the land of this case shall be deemed to be the purchase price of the land of this case, so long as the plaintiff et al. received the purchase price of the land of this case from O00,000 won or more than 1/300,000 won from O00,000 won, prior to the cancellation of the sales contract of the part of this case between GG and 2.

Furthermore, if the acquisition value of land No. 1 of this case is calculated by calculating the amount of income tax to be paid following the transfer of land No. 1 of this case with the acquisition value of land No. 1 of this case as the OOwon (OOwon x 1/3), the transfer value is calculated by using the transfer value as the OO as the transfer value of land No. 1 of this case, the transfer income tax to be paid by the Plaintiff, such as the written resolution on the decision on the transfer income tax belonging to the year 2004, is the total amount of OOO members of capital gains tax and the additional tax OO members, and ultimately exceeds the amount of OO (less than 10 won) out of the disposition on the transfer income tax belonging to January 11, 203

3) The transfer value of the instant land No. 2 and the transfer income tax due to the sale of the instant land No. 2

The fact that the land No. 2 of this case was sold to the OO(OOwon + OOOwon) in the case of a compulsory auction, etc. for 2009 OOO real estate by auction, etc. is as seen earlier.

According to the above facts, although the transfer value of land No. 2 of this case was OO won, the defendant calculated the transfer income tax on the premise that the transfer value of land No. 2 of this case was OO won, and the acquisition value of land No. 2 of this case was calculated on the premise that the transfer value of land No. 2 of this case was an OO won, including acquisition tax (in this part, the defendant reflected it at the time of the disposition on May 1, 201 by the defendant as of May 1, 201). Since the defendant calculated the transfer income tax on the premise that it is OO won, each of the above parts is unlawful.

Furthermore, if the acquisition value of land No. 2 of this case is calculated by calculating the amount of income tax to be paid following the transfer of land No. 2 of this case as the OO won and transfer value as the OO won, the transfer income tax to be paid by the Plaintiff, such as the written resolution of decision on transfer income tax for the attached year 2010, is the total amount of OO won of capital gains tax and additional OO won, and ultimately, the disposition of imposition of the transfer income tax for the transfer income tax for the year 2010 as of May 1, 201.

The portion that exceeds the OO(10 won) is illegal.

3. Conclusion

Therefore, the plaintiff's claim is accepted within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.