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Reasons
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(영문) 서울행정법원 2016.02.17 2015구단56086
양도소득세부과처분취소
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1. The plaintiff's claim is dismissed.

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

Reasons

1. Details of the disposition;

A. On July 16, 2002, the Plaintiff acquired 5/50 shares of each of the 5/50 shares of the building site B in Busan Shipping Daegu and 872.4 square meters and above ground (hereinafter “instant real estate”) (hereinafter “instant real estate”), and transferred it to C on September 3, 2008.

B. On August 26, 2008, the Plaintiff calculated the transfer value of the shares in this case to the Defendant as the actual transaction value of KRW 270 million, and the acquisition value as the actual transaction value of KRW 1927 million, and paid the transfer income tax of KRW 9,207,520.

C. On August 7, 2014, the Defendant notified the Plaintiff to additionally pay capital gains tax of KRW 50,303,820 (including penalty tax of unlawful underreporting, KRW 8,793,113, and additional tax of KRW 14,846,587) for the year 2008 on the premise that the transfer value of the instant shares was KRW 370,000,000,000.

(hereinafter “instant disposition”) D.

The plaintiff was under the procedure of the previous trial.

[Ground of recognition] Facts without dispute, Gap 4, 5, 10 to 14, Eul 1 (including a provisional parcel number; hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The sales contract dated May 26, 2008, which was based on the premise of the disposition of the Plaintiff’s assertion, concluded by the Defendant on May 26, 2008 (hereinafter “instant first contract”) was merely a draft, and the Plaintiff presented to C an offer to the buyer, but there was no fact that C expressed an intention of acceptance. Therefore, it was not possible to conclude a sales contract with the purchase price as stipulated in the instant first contract.

The Plaintiff and C concluded a sales contract by setting the sales price of the instant shares as KRW 270 million.

Therefore, since the transfer value of the shares in this case is KRW 270,000,000,000, the Defendant’s disposition based on a different premise is unlawful.

B. (1) At the time of the Plaintiff’s sale of the instant real estate to C, C shall exclude the Plaintiff’s share from the instant real estate.

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