Review Transfer 2014-0170

The submission of the certificate of approval is presumed to have been prepared as the content of the contract between the parties, except in special circumstances.

The sales contract submitted is in total of three and the sales price are different respectively, and it is not possible to conclude which contract is a true contract, and the submitted contract shall not be recognized as a true contract due to the lack of consistency in argument.

Article 96 of the Income Tax Act

Seoul Administrative Court 2015Gudan50811

○ ○

○ Head of tax office

September 25, 2015

October 20, 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 disposition of imposition of capital gains tax of KRW 000,000,000 for the Plaintiff on October 0, 2000 shall be revoked.

1. Details of the disposition;

A. On October 0, 000, the Plaintiff and ○○○ (hereinafter “○○○”) owned ○○○ hotel (hereinafter “the instant real estate”) on a successful bid with ○○○○○, ○○○, and 2 lots of land (hereinafter “○○○”). On around October 0, 000, the Plaintiff and ○○ was transferred to 2 persons, including ○○, ○○, and ○○, and did not report the transfer income tax.

B. On October 0, 2000, the Defendant considered the transfer value of the instant real estate as KRW 000,000,000, and determined and notified the Plaintiff of KRW 000,000,000 as transfer income tax for the year 2013.

(hereinafter referred to as the instant disposition)

C. The Plaintiff filed a formal objection and a request for review, but all of which were dismissed.

[Ground of recognition] Facts without dispute, Gap 1, 2, Eul 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The actual transfer value of the instant real estate is KRW 0 billion, but only KRW 0 billion was written in the seal of approval in order to obtain a large amount of loan from the transferee of the instant real estate. Therefore, the instant disposition that deemed the transfer value of the instant real estate as KRW 0 billion is unlawful.

B. Determination

1) According to Article 96(1) of the Income Tax Act, the transfer value of real estate shall be based on the actual transaction value in calculating transfer income tax.

In addition, barring any special circumstance, the seal of approval signed by the parties to a transaction and approved by the head of a Si/Gun, etc. shall be presumed to have been prepared in accordance with the sales contract between the parties, and the assertion that the contract was prepared differently from the actual ones shall be proved (see Supreme Court Decision 93Nu2353, Apr. 9, 193).

2) According to each of the evidence Nos. 1 and 6-1 and 3 in the instant case, the sales price shall be KRW 0 billion in the approval form for the transfer of the instant real estate submitted by the Plaintiff. Thus, the Plaintiff must prove that the transfer price of the instant real estate is KRW 0 billion, not KRW 0 billion, and KRW 0 billion in the transfer price of the instant real estate.

3) However, comprehensively taking account of the following circumstances acknowledged by the respective statements and arguments stated in Gap evidence Nos. 4, 6-1, 2, and 18 and the purport of the entire pleadings, the evidence alone submitted by the plaintiff is insufficient to recognize that the actual transfer value of the real estate of this case is KRW 0 billion, and there is no other evidence to acknowledge this otherwise.

① The contract for the transfer of the instant real estate was submitted to 3 pages on October 0, 00, 200 and 1 billion won on October 0, 000. The sales price was each KRW 0 billion,000,000 won, and 0 billion. As alleged by the Plaintiff, it cannot be readily concluded that the contract for the transfer of the instant real estate was genuine. Furthermore, the Plaintiff asserted that the actual transaction price was KRW 0 billion, while claiming that the actual transaction price was KRW 0 billion, it is not consistent with the Plaintiff’s assertion, such as the Plaintiff’s assertion that the actual transaction price was KRW 0 billion, following the submission of the preparatory document dated October 0, 200.

② Although the Plaintiff submitted Gap evidence Nos. 7 through 16 due to the financial transaction details on the transfer proceeds of the instant real estate, it is merely small amount that the transferee paid to the transferor, and thus, it cannot be understood as the actual transfer value of the instant real estate.

③ Meanwhile, in cases where a right to collateral security is created with respect to real estate, the maximum amount of the secured debt shall be determined within the scope of the actual value of the real estate. As such, when the maximum amount of the secured debt of the right to collateral security is greater than the amount calculated by other methods, the actual maximum amount of the secured debt shall be deemed the actual value (see Supreme Court Decision 89Nu7481, Mar. 27, 1990). Accordingly, the maximum amount of the secured debt of the instant real estate was set at KRW 2.

3. Conclusion

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