Early High Court Decision 201J 0805 ( November 09, 2011)

The transfer value of real estate is not included in the transfer value of real estate as long as the real estate has agreed to sell and purchase separately and the obligation according to the actual agreement has been fulfilled.

Even if the key value of the instant case exceeds the objective exchange value for the house and equipment of the instant telecom, the said agreement itself cannot be deemed as a false declaration of conspiracy, as long as it agreed to sell and purchase the said house and equipment with the remaining value on the key value of the instant case and fulfilled all obligations under the actual agreement.

2013Gudan1243 Revocation of Disposition of Imposing capital gains tax

KimA

port of origin

September 11, 2013

November 6, 2013

1. The Defendant’s disposition on November 5, 2010 against the Plaintiff is revoked. The disposition of imposition by the OOO of the transfer income tax for the year 2007.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

"A. The plaintiff transferred the general accommodation facilities with 920 square meters and 661 square meters of O-dong O20 O-dong O-dong and 661 square meters of its ground reinforced concrete structure (hereinafter "each real estate of this case"; the above general accommodation facilities are referred to as "the apartment of this case") on February 14, 2007 to POB, the plaintiff reported and paid the acquisition value of each real estate of this case as OO, transfer value as OO, OOO's transfer value as OO's transfer value as OO's transfer value, and 200,000 won as transfer value of each of the above O's transfer value to 20,000 won as transfer value of each of the above O's transfer value from July 7, 2010 to July 26, 2010.

D. On January 31, 201, the Plaintiff appealed and filed an appeal with the Tax Tribunal. On November 9, 201, the Tax Tribunal partially accepted the Plaintiff’s appeal, and rendered a decision that the Plaintiff would correct the tax base and tax amount by adding the OOOO to the necessary expenses that the Plaintiff spent for the repair work cost for the instant cartel prior to the transfer of each real estate in this case.

E. On November 29, 201, the Defendant corrected the transfer income tax for the Plaintiff in the year 2007 as OOO in accordance with the above order (hereinafter referred to as the “instant disposition”),” and there is no dispute over the grounds for recognition, Gap evidence 1-2, Gap evidence 2, Eul evidence 3, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 1-2, Eul evidence 2, and Eul evidence 2-2.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The key issue of the instant case is that the Plaintiff transferred the house and equipment of the instant telecom to the privateB, separate from the transfer of each of the instant real estate, and received the price therefor. However, the Defendant disposed of the instant case on the premise that the instant money is the transfer price of each of the instant real estate. Thus, the Defendant’s disposition against the Plaintiff is unlawful.

B. Relevant statutes

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

C. Determination

1) Each statement in Eul evidence Nos. 3-1 through 5, Eul evidence Nos. 5-1 through 6, Eul evidence Nos. 7, Eul evidence Nos. 9, Eul evidence Nos. 10-1 through 3 alone is insufficient to conclude that the issue amount of this case is the transfer price of each real estate unrelated to the purchase price of the house and equipment of the Mobel, and there is no other evidence to prove otherwise. Rather, each of the above evidences shows Nos. 4-1, 2, 9, Gap evidence Nos. 10, 6, Eul evidence Nos. 11-1, and Eul evidence Nos. 12, witness Nos. 12, witness Eul, testimony of newCC, and all of the arguments. In full view of the following circumstances, the issue of this case is acknowledged by transferring the Mabel to the plaintiff and receiving the money with the house and equipment of this case.

① On February 14, 2007, at the time of the transfer of each of the instant real estate, the Plaintiff entered into a sales contract with the privateB to sell each of the instant real estate to the foreign-capital invested company, and entered into a sales contract with the foreign-capital invested company to sell the office fixtures and fixtures listed in the separate sheet with the foreign-capital invested company (45 number of guest rooms) on the key money. The Plaintiff delivered all of the instant office fixtures and fixtures to the private-capital investment company, along with the instant real estate. From January 8, 2007 to February 14, 2007, the Plaintiff received from the private-capital investment company a total sum of the transfer proceeds of each of the instant office fixtures and fixtures from the private-capital investment company.

② In this Court, the privateB appeared as a witness and entered into a contract with the Plaintiff to purchase the instant Moel’s house and fixtures separately from the instant real estate. After acquiring all the said house and fixtures, some of the new purchased goods were replaced, but some of them were now used.

③ Although the key value of this case exceeds the objective exchange value for the house and equipment of the instant Maurher, such agreement itself cannot be deemed as a false declaration of agreement, as long as the Plaintiff and CB agreed to sell and purchase the above house and equipment with remaining value at the key value of this case and fulfilled all the obligations under the actual agreement.

④ NewCC, which arranged the sale and purchase of each of the instant real estate between the Plaintiff and privateB, was present at this court as a witness and testified that, in practice, the Plaintiff and privateB did not act as a broker for the sale and purchase of each of the instant real estate, it was common to demand the amount of 10% of the franchise price at the price of equipment.

⑤ In light of the fact that DD Appraisal Co., Ltd. conducted a market price appraisal on each of the instant real estate at the request of Han Bank, and conducted an appraisal on each of the instant real estate, around August 9, 2006, around six months prior to the date of the Plaintiff’s transfer of each of the instant real estate, the total market price of each of the instant real estate was assessed as OOO won, etc., the Plaintiff’s claim as the transfer price of each of the instant real estate appears to have close to the market price as of February 14, 2007.

2) Therefore, the Defendant’s instant disposition on a different premise is unlawful.

3. Conclusion

The plaintiff's claim of this case is justified and accepted.