Daegu District Court 2012Guhap1541 ( December 05, 2012)

early 2010-Gu3823 (2012.07)

The disposal to which the method of conversion acquisition is applied is legitimate because it is difficult to believe the entries in the acquisition contract.

The disposition to apply the conversion acquisition value is legitimate, since it is difficult to believe the statement in light of the fact that each resident registration number and the broker's column are affixed to the sales contract, that there is no seal of approval, that it is not a contract attached at the time of application for registration, and that the seller denies the contents of the contract, and that there is no transaction example or appraisal value.

2013Nu179 Revocation of disposition to impose capital gains tax

AA

Head of the Tax Office

Daegu District Court Decision 2012Guhap1541 Decided December 5, 2012

August 16, 2013

August 30, 2013

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The disposition of imposition by the defendant on April 8, 2010 against the plaintiff on April 8, 2010 of the transfer income tax belonging to the year of 207 shall be revoked.

1. Details of the disposition;

A. The plaintiff, from September 8, 1998 BB, OO-gu O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-dong 217 O-O-O-O-dong

"OOO호(전유면적 55.80㎡， 이하 '이 사건 아파트'라 한다)를 취득하였다가 2007. 11. 12. CCC에게 이를 양도하였다(갑 제2호증).",나. 원고는 성동세무서장에게 이 사건 아파트의 양도소득과세표준 신고를 하면서 실 지양도가액 OOOO원， 실지취득가액 OOOO원임을 전제로 산정한 양도소득세 OOOO원을 납부하였다.

C. Under Article 114(7) of the former Income Tax Act (amended by Act No. 8825, Dec. 31, 2007; hereinafter referred to as the "former Income Tax Act") and Article 176-2(1)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008; hereinafter referred to as the "former Enforcement Decree of the Income Tax Act"), the Defendant calculated the acquisition value of the apartment of this case as an OOO based on the real transfer value and corrected the tax base and tax amount, and notified the Plaintiff of the imposition of OOOO of the transfer income tax for the year 207 on April 8, 2010 (hereinafter referred to as the "instant disposition").

D. On July 8, 2010, the Plaintiff filed an appeal with the Tax Tribunal on November 16, 201, and the claim was dismissed on February 7, 2012 (Evidence 1).

[Based on Recognition] The non-contentious facts, Gap evidence 1, 2, and Eul evidence 1, and the whole purport of the pleading

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) Although the acquisition value of the apartment of this case is recognized as an OOO under a sales contract (Evidence A No. 4) submitted by the Plaintiff at the time of filing a return on the tax base of transfer income, it is unlawful to recognize the transfer margin by calculating the acquisition value as the conversion value without recognizing it as the actual transaction amount.

2) Even if the acquisition value reported by the Plaintiff is not recognized as the actual transaction value, the Defendant calculated the acquisition value by applying the method of transaction example, appraisal value, and conversion value in sequence as prescribed by Article 114(7) of the former Income Tax Act, and Article 176-2(3) of the Enforcement Decree of the same Act. In particular, according to the past tax data of the real estate bank, the average market value of the instant real estate in spite of the Plaintiff’s acquisition of the instant real estate in September 198, 198, it is unlawful for the Defendant calculated the transfer margin by applying the conversion value in sequence without applying the transaction example and the method of appraisal

(b) Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

C. Determination

1) Determination on the assertion of actual transaction values

In light of the following circumstances, Gap evidence Nos. 4, Eul evidence Nos. 3 and 14, each of which is recognized as being comprehensively taken into account the overall purport of the pleadings, i.e., ① the sales contract ("the instant contract" No. 4, hereinafter) of this case submitted by the plaintiff upon filing a tax base of transfer income, on which the title of the seller is affixed, and the seller and the buyer's resident registration number and telephone number are not indicated, and the broker is blank, ② the instant contract is not a contract attached at the time of filing an application for ownership transfer registration because there is no seal of approval pursuant to Article 3(1) of the Act on Special Measures for the Registration of Real Estate and there is no seal of approval pursuant to Article 3(1), and ③ BB of this case is not a contract attached at the time of filing an application for ownership transfer registration, and it is difficult to believe that Gap evidence No. 4 (the instant contract) cannot be deemed as a seller's prepared, and there is no other evidence to recognize the actual transaction price of the apartment.

Therefore, the plaintiff's above assertion is without merit.

2) Determination on the assertion of violation of the order of estimated investigation

Article 114 (7) of the former Income Tax Act provides that where it is impossible to recognize or confirm the actual transaction value at the time of the acquisition of the relevant asset, the acquisition value may be determined or corrected by means of transaction example, appraisal value, conversion value (referring to the acquisition value converted from the transaction example value, transaction example value or appraisal value by the method prescribed by the Presidential Decree) or the standard market value, etc.

In addition, Article 176-2 (3) of the former Enforcement Decree of the Income Tax Act provides that where the acquisition value is estimated, it shall be calculated by applying the method of the acquisition price converted under paragraph (2) and the standard market price (no. 2) if there is a transaction example of assets identical or similar to the assets in question within three months before or after the date of acquisition, and (2) if there is a depreciation value assessed by two or more appraisal corporations on the assets in question within three months before or after the date of acquisition and deemed credibility (limited to those whose date of appraisal is less than three months before or after the date of acquisition).

However, there is a transaction example of assets identical or similar to the apartment of this case within 3 months before and after the date of acquisition, or (2) there is no evidence to prove that there is a value assessed by more than 2 certified public appraisal corporations on the apartment of this case within 3 months before and after the date of acquisition, and there is no evidence to prove that there is credibility of the appraisal value, and since the past tax data (Evidence A9) of the real estate bank in the real estate bank cannot be deemed to constitute a transaction example or appraisal value, it is justifiable for the defendant to calculate the transfer margin of the apartment of this case

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.