early 2010west 2487

Where a preliminary return is made based on the actual transaction price different from the fact and the period of final return expires, correction is based on the actual transaction

Even if a transferor makes a preliminary return of the tax base of the transfer income tax based on the actual transaction price different from the fact and the return of the revised return is made based on the standard market price, the head of the competent tax office may correct the tax base and the tax amount

2011Guhap2738 Revocation of Disposition of Imposing capital gains tax

The AA et al.

1 other than the head of the Dong-gu Tax Office

September 28, 2011

October 26, 2011

1. The plaintiff's claims are all dismissed.

2. The plaintiffs shall bear the litigation costs.

The imposition of capital gains tax of 42,065,400, and the imposition of capital gains tax of 2005 and 25,725,166, and 166 on April 30, 2010 by the head of the defendant Dong Daegu Tax Office against the plaintiff Jung-gu Tax Office (hereinafter referred to as "the imposition of capital gains tax of 25,725,000,000 won for the year 205 for the year 2005 for the plaintiff Jung-gu Tax Office and the imposition of capital gains tax of 2,350,000 won for the year 205 for the plaintiff Jung-CC on June 7, 2010 is revoked.

1. Details of the disposition;

A. On March 20, 1982, the Plaintiffs acquired the instant real estate as a cause of inheritance (the shares in inheritance was transferred to Plaintiffs 6/21, Plaintiff 6/21, Plaintiff 5BB 4/21, Plaintiff 1/21, Nonparty 6/21, Non-Party 5/21, Non-Party 5/21, Non-Party Maddddddd 4/21, Non-Party 5/21, Non-Party 6/21, Non-Party 5/21, Non-Party 5/21, Non-Party 5/21, Non-Party 50, Non-Party 2005, Non-Party 1,720,000, and Non-Party Hah’s total payment amounted to KRW 1,70,000, and completed the registration of ownership transfer on May 12, 2005.

B. On July 31, 2005, the Plaintiffs filed a preliminary return on the tax base of transfer income based on the actual transaction price with the transfer value of the instant real estate at KRW 970,000,000, and the acquisition value at KRW 463,00,000.

C. The Defendants confirmed that the transfer value reported by the Plaintiffs differs from the actual transaction value, and confirmed that the transfer value was at least 1,720,000,000 won, and reported the revised return. However, the Plaintiffs reported the revised return at the standard market price on September 15, 2009, which was after the expiration of the final return on the tax base of transfer income.

D. The Defendants did not accept the above revised return and calculated capital gains tax amounting to KRW 1,720,00,000 on April 30, 2010, the Defendant Daegu Tax Office imposed capital gains tax amounting to KRW 42,065,400 on Plaintiff Jung-gu for 205, capital gains tax amounting to KRW 42,065,40 for 2005, for Plaintiff Jung-B for 2005, capital gains tax amounting to KRW 25,725,166 for 205, and for Defendant Samsung F, for 25,725,166 for 205, capital gains tax amounting to Plaintiff Jung-gu for 205 (hereinafter collectively referred to as “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, 10 evidence, Eul evidence l-4, the purport of the whole pleadings

2. The plaintiffs' assertion is as follows.

Article 96 (1) 6 of the former Income Tax Act applies only when calculating the amount of capital gains tax based on the actual market price rather than on the standard market price is favorable to taxpayers, and Article 114 (4) of the former Income Tax Act applies to the time of reporting the amount of capital gains tax at a price lower than the standard market price by abusing the above provision. The real estate in this case is subject to reporting and paying capital gains tax based on the standard market price as a commercial building. Since the Plaintiffs were aware of it as a high-priced house that should be reported by the Plaintiffs as the value of the commercial building and made a preliminary return of capital gains tax without using the standard market price, even if the actual market price reported by the Plaintiffs is false, so long as a revised return is filed based on the standard market price, the capital gains tax shall be calculated based on the standard market price, and therefore, Articles 96 (1) 6 and 114 (4) of the former Income Tax Act shall not apply.

3. Related statutes;

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

4. Determination

(1) Articles 96(1) and 97(1)1(a) of the former Income Tax Act (amended by Act No. 7837, Dec. 31, 2005; hereinafter referred to as the "former Income Tax Act") provides that the transfer value and acquisition value of assets under Article 94(1)1 and 2 of the same Act shall be based on the standard market price in principle, and exceptionally, Articles 96(1)6 and 97(1)1(a) of the same Act provide that "in cases where the transferor returns the actual transaction value as at the time of transfer and acquisition to the head of the competent tax office having jurisdiction over the place of tax payment by the deadline for the final return of transfer income tax base after the preliminary return of transfer income is made pursuant to Article 96(1)6 and the proviso of Article 97(1)1(a) of the same Act, and Article 114(4) of the same Act provides that the transfer value and tax amount are different from the standard market price reported by the head of the competent tax office or tax office having jurisdiction over the place of tax payment.

(2) In light of the above legal principles, since the actual transaction price reported by the plaintiffs at the time of the preliminary return of tax base of transfer income is false, and the period of final return has expired, even if the plaintiffs filed a revised return based on the standard market price after the expiration of the period of final return, the defendants can correct the tax base of transfer income and the tax amount based on the verified actual transaction price.

5. Conclusion

Therefore, all of the plaintiffs' claims are dismissed. It is so decided as per Disposition.