Cho High Court Decision 201J 4744 ( December 21, 2011)

A disposition to apply the conversion value as it is impossible to verify the actual acquisition value at the time of acquisition is legitimate.

The disposition that applied the conversion price without recognizing the actual transaction price or the acquisition cost of the repurchase right as asserted by the plaintiff is legitimate in light of the following: (a) the conversion price was reported at the time of the initial return but the assertion is not consistent, and there is no reliable evidence, such as granting the repurchase right to land and the contract on the conditions thereof, etc.

2012Guhap1328 Revocation of Disposition of Imposing capital gains tax

Maximum XX

Head of the tax office

December 20, 2012

January 17, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant imposed capital gains tax of KRW 000 for the year 2010 on the Plaintiff on August 4, 2011 and imposed capital gains tax of KRW 000 for the year 2010 on the Plaintiff on December 3, 2012.

1. Details of the disposition;

A. On October 27, 2010, the Plaintiff transferred the registration of ownership transfer to the leastA, after completing the registration of ownership transfer, of 000-2 large volume 281 square meters (hereinafter “instant transfer”).

B. The assigned land of this case is transferred after the Plaintiff acquired 000-17 land of Busan Northern-dong 000-17 (hereinafter referred to as " Busan Northern-dong land") , 000-4 land, and 000 land from Busan Northern-dong as follows:

① On September 1, 1997, the Plaintiff acquired 11 square meters of forest land as 000-17 forest land on September 1, 1997. The said land was combined and cancelled on October 15, 1997.

② On March 3, 1993, the Plaintiff purchased 3030/600 of co-owners’ shares (hereinafter “instant land”) from OO Co., Ltd. (former trade name: OO Development Co., Ltd.; hereinafter “OOO”) on March 3, 1993, and completed the registration of ownership transfer on April 9 of the same month. The instant land was divided into 00-15 forest and 303 square meters on April 7, 1995, and was divided into 00-15 forest and 303 square meters on October 15, 1997 into 00-17 forest and 11 square meters on October 4, 1997; 200-15 forest and 303 square meters on October 4, 2007; 314 square meters on Feb. 4, 1998; 200-1 and 500-1,007 forest and forest were converted into 9040-1.7.

③ On December 6, 1997, the Plaintiff acquired 404/33100 of co-owners’ shares among the land on December 6, 1997. The land was divided into 000-2, but was combined with 000-15 square meters and 247 square meters following a land category change.

C. On December 31, 2010, the Plaintiff reported and paid KRW 000 as capital gains tax by taking the transfer value of the instant land as KRW 000 as the actual transaction value, KRW 000 as the acquisition conversion value, and KRW 000 as other necessary expenses.

D. Accordingly, on May 31, 201, the Defendant issued a notice of prior tax investigation to the Plaintiff, and on May 31, 201, the Plaintiff converted the acquisition value of the instant transferred land into KRW 000,000, and 000,000,000,000,000,000 capital gains tax was additionally reported and paid in addition to other necessary

E. On August 4, 2011, without recognizing the acquisition price of the instant land as necessary expenses, the Defendant calculated gains on transfer and calculated the calculated tax amount by using the converted acquisition price of the instant land as KRW 000, and other necessary expenses, as gains on transfer and the calculated tax amount, and issued a tax assessment by deducting KRW 000,000,000,000,000 in capital gains tax year 2010 (hereinafter “instant disposition”).

F. On July 6, 2011, the Plaintiff dissatisfied with the instant disposition and claimed a pre-assessment review against the Defendant on July 6, 201, and sought a real estate sales contract and receipt for the instant land, and accordingly, the Plaintiff asserted that the acquisition value is KRW 000,000 as the actual transaction price, and KRW 000,000 as the price for acquiring a redemptive right is recognized as other necessary expenses. However, the Defendant did not recognize

G. Accordingly, the Plaintiff filed a tax appeal on October 10, 201, but was dismissed on December 21, 201.

H. The Defendant revoked ex officio the penalty tax of KRW 000 among the instant dispositions at the trial, and on December 3, 2012, the Defendant again issued a disposition imposing penalty tax of the same amount by specifying the type of penalty tax and the grounds for calculation of the amount of penalty tax.

[Ground of recognition] Facts without dispute, Gap evidence l through 4 (including paper numbers, hereinafter the same shall apply), Eul evidence 1 to 4 and 8, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The transfer income tax on the land at issue of this case shall be calculated based on the actual transaction value of 000 won, and in order to acquire the land at issue of this case, the price paid by the Plaintiff to KimB, the repurchase right holder of the land at issue of this case, shall be calculated based on other necessary expenses. Accordingly, the disposition at issue of this case on a different premise is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Comprehensively taking account of the following circumstances acknowledged by Gap evidence Nos. 3, 4, 8, and Eul evidence Nos. 4 through 8, witness leD, KimB, and KimCC’s partial testimony and the overall purport of oral argument, it is reasonable to deem that Gap evidence Nos. 8, 5, and 6, as shown in the plaintiff’s argument, are hard to believe, and there is insufficient evidence to acknowledge each of Gap evidence No. 3 alone, and there is no other evidence to acknowledge it. The issue of this case falls under a case in which the actual transaction price at the time of its acquisition cannot be confirmed.

① At the time of the initial report of capital gains tax, the Plaintiff reported the acquisition value of the instant land as the conversion price to its acquisition value. After receiving prior notice of tax investigation from the Defendant, the Plaintiff reported capital gains tax by adding the acquisition value of the instant land as KRW 000,000 to other necessary expenses. In this case, the Plaintiff still asserted that the acquisition value of the instant land was the conversion price for acquisition (not 00,000, which the Plaintiff asserts as the actual transaction value) and thereafter asserted that the acquisition value of the instant land was 00, but only after the pre-assessment review, the Plaintiff asserted the acquisition value of the instant land as the actual transaction value as KRW 00,00, in calculating the conversion price of the acquisition value of the instant land at issue in the instant lawsuit, and thus, is not reliable.

② The witness KimCC (the director of theO is between the Plaintiff and D, and the director of theO) purchased approximately 20,000 square meters of forest land of approximately 5,000 square meters, including approximately 5,000 square meters, from co-owners KimB et al. and 14, who jointly owned the above forest land in order to create apartment houses, and thereafter, purchased approximately 100 square meters of the above forest land at approximately 100 square meters of the entrance of the apartment to 14, KimB et al. in return for the purchase, namely, the right to repurchase, i.e., the right to purchase the land at approximately 14,00 square meters of the apartment at the entrance of the apartment. During that process, KimB stated 14 other co-owners and sold to O the right to repurchase at KRW 5,00 of the above forest land, and thereafter, KimB concluded the sale contract with the Plaintiff on behalf of the Plaintiff, the Plaintiff and the Plaintiff stated the sale contract at KRW 00 as the sale price of the instant land.

However, in light of the fact that the witness KimB stated that it is the subject of all the trades related to the right of repurchase, but there is no reliable evidence such as granting the right of repurchase to the instant land between OO and KimB, and the contract on the terms and conditions thereof, etc. The contract date is stated on February 10, 1993. However, in the real estate register for the instant land, the ownership transfer registration is completed on the ground of sale on March 3, 1993. As seen below, in the receipt prepared by leD, it is stated that the receipt prepared by leD received KRW 000 with the "land price" of 00-4, and there is no indication "right of repurchase", it is difficult to believe that the entry of No. 8 evidence and the testimony of KimB by the witness KimB as shown in the plaintiff's assertion.

③ The receipt (Evidence A 3) submitted by the Plaintiff stated that the above amount of 15 co-owners' co-owners' right to repurchase is 000 won. The above amount of money is 000 won. The above amount of money is stipulated as DDR received on February 26, 1993, and it is not mentioned at all as to whether the right to repurchase exists or the payer of the above amount of money. In addition, the witness KimCC stated that the above amount of 15 co-owners' right to repurchase is also 00 won because he purchased approximately KRW 5,00 from 15 co-owners, including KimB, since he purchased approximately KRW 5,000 from 15,00 from 15,00 won, according to the certificate of real estate register, the above co-owners' share ratio is different according to the above co-owners' certificate of real estate register, but only the receipt was prepared and received without preparing any contract for the transfer of the above right to repurchase right. It is difficult to obtain the above amount of money.

④ In addition, the witness leapD received KRW 000 from the O’s staff and stated that it was given to the O’s staff. The witness KimCC stated that it was held by the O’s staff to receive the above receipt, and that it was held from February 26, 1993 to April 201. However, if the Plaintiff paid KRW 00, as alleged by the Plaintiff, it seems that the said receipt was not given to the Plaintiff, but continued to receive and keep the said receipt from the O’s staff.

2) Therefore, in calculating the transfer income tax on the land at issue of this case, the disposition at issue of this case is legitimate, considering that the Defendant did not recognize the actual transaction price of KRW 000 and KRW 000,000 as the actual transaction price at the time of the acquisition, and the acquisition price cannot be confirmed as the actual transaction price at the time of the acquisition (the Plaintiff’s officially assessed individual land price at the time of the transfer of the land at issue of this case is KRW 000,00, the officially assessed individual land price at the time of the transfer of the land at the time of the transfer of the land at issue of this case was calculated by applying the officially assessed individual land price at the time of the transfer to the officially assessed individual land price at the time of the transfer. However, the issue of this case is that the land at issue of this case is divided, combined with the land at the time of division, combined, and divided into 34 square meters on May 9, 200, and that the Plaintiff transferred the land at the time of the transfer on October 27, 2010>

3. Conclusion

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