Seocho 2010west0645 ( October 31, 2011)

An agreement reached by voluntarily assessing the value of the subject matter of exchange shall not be deemed an actual transfer value.

Where the parties to the exchange arbitrarily evaluate the value of the object of exchange without undergoing the market price appraisal, and enter the appraised value in a written agreement, it shall not be deemed a real transfer value, and there is no transaction example or appraisal value, and it is legitimate to calculate the transfer marginal profit

2011Gudan1084 Disposition of revocation of imposition of capital gains tax

KimA

Head of Yeongdeungpo Tax Office

August 24, 2011

September 28, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 271,661, and 350 against the Plaintiff on November 2, 2009 shall be revoked.

1. Details of the disposition;

A. On June 3, 2002, the Plaintiff, along with Nonparty KimB, agreed to jointly acquire the land of 000-0,000 OOdong, Gangnam-gu Seoul Metropolitan Government (i/2 of each co-owned share) and newly construct a building on the above site in collaboration with KimB on November 21, 2003 (i/2 of each co-owned share), and completed registration of ownership preservation (i/2 of each co-owned share), the Plaintiff’s share in each of the above real estate (hereinafter “the instant real estate”) owned by KimB, and agreed to exchange the Plaintiff’s share in each of the above real estate with the OO, Dong-dong, Yeongdeungpo-gu, Seoul, which was owned by KimB, the same 751-6, 751-6, and 00-0 land and the above ground buildings (hereinafter “exchangeed real estate by adding up these land and buildings) and completed registration of ownership transfer to KimB on December 13, 2005.

B. In filing a preliminary return of capital gains tax on the transfer of the instant real estate, the Plaintiff calculated and reported both the transfer value and acquisition value as KRW 2.1 billion. The Defendant calculated the transfer value and acquisition value as a standard market price and imposed capital gains tax of KRW 271,661,350 on the Plaintiff on November 2, 2009, on the ground that the transfer value of the instant real estate cannot be deemed as the actual transaction value since it was voluntarily assessed without the market price appraisal procedure.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 4 (including virtual numbers; hereinafter the same shall apply), Eul evidence 1

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff reported the transfer value of the instant real estate to the Defendant along with a written agreement in KRW 2.1 billion. The instant disposition that the Plaintiff reported without recognizing the transfer value reported by the Plaintiff as the actual transaction value, even though there are no circumstances to deem it false in light of transaction example, appraisal value assessed by the appraisal corporation, etc., such as the instant real estate evaluated as 2,194, 214, and 100 won in the appraisal by the △ Appraisal Corporation on February 10, 2006.

(2) Even if the transfer value reported by the Plaintiff is not recognized as a real transaction value, and the transfer value is calculated based on the standard market price, it shall be deemed as a real transaction value due to the supplement application of the real transaction value under the Income Tax Act. Therefore, the transfer income tax should be calculated by applying the accepted real transaction price to the factoring.

(b) relevant statutes;

It is as shown in the attached Form.

(c)a recognition;

(1) According to the agreement on the transfer of ownership by water exchange between the Plaintiff and KimB on December 2, 2005, which was made in the name of the Plaintiff and KimB, the real estate in this case shall be assessed as KRW 2.1 billion on the basis of the acquisition value [the land purchase price of KRW 4.2 billion + KRW 1.255 billion + building construction cost of KRW 1.955 billion)], exchange real estate shall be assessed as KRW 1.258 billion (the land price of KRW 1.2 million shall be applied per square year, and the building shall have been old, applying KRW 264,00 won per square meter, which is the standard market price), and the amount calculated by deducting the principal and the deposit for mortgage creation from the appraised value of the real estate in this case shall be KRW 1.15 million,50 million, and the amount calculated by deducting the deposit for rental from the appraised value of the exchanged real estate shall be described as the difference of KRW 1.145 billion,84 million, and it shall be written.

(2) For the above exchange contract, there was no fact that the Plaintiff and KimB appraised the instant real estate and exchanged real estate, and there was no difference between the assessed values of each of the said real estate and the assessed values of each of the said real estate.

【Non-contentious Facts, Gap evidence No. 4, the purport of the whole pleadings

D. Determination

(1) First, we examine the Plaintiff’s assertion that the actual transfer value of the pertinent real estate should be deemed as the actual transfer value of the pertinent real estate. The actual transfer value of the pertinent asset, which serves as the basis for calculating the transfer income tax, refers to the value objectively recognized by the sales contract and other evidentiary documents, as the transferor transferred the assets at the time of the transaction. Thus, in the case of an exchange of real estate, the actual transfer value can be confirmed if the transaction is accompanied by the settlement procedure for the difference in the value of the object to be exchanged as a value exchange based on the standard value. However, in the case of a simple exchange of real estate, the actual transfer value cannot be confirmed (see, e.g., Supreme Court Decision 98Du19841, Nov. 26, 199). Thus, since there is no evidence that the exchange party evaluated the value of the object to be exchanged at his discretion before and after the date of transfer and entered in the agreement with the appraisal corporation within the standard market value before and after the date of transfer, such real transfer value shall not be deemed the value.

(2) Next, we examine the argument that even if the transfer value is calculated as the standard market price, the acquisition value shall be calculated as the actual market price. According to Article 100(1) of the former Income Tax Act, in calculating the transfer margin, in cases where the transfer value is calculated based on the actual market price, the acquisition value shall also be calculated based on the actual market price, and when the transfer value is calculated based on the standard market price, the acquisition value shall also be calculated based on the standard market price. Thus, the defendant's calculation of both the transfer value and the acquisition value of the real estate of this case based on the standard market price is lawful in accordance with the above provision, and as alleged by the plaintiff, there is no legal

(3) Therefore, the instant disposition is lawful, and all of the Plaintiff’s arguments are without merit.

3. Conclusion

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