Cho High Court Decision 2008west0838 (Law No. 86, 19, 2008)

Appropriateness of the assertion that the acquisition value of the sale right has been underpaid;

Since the approval certificate contract is presumed to have been prepared in accordance with the contract unless there are special circumstances, the claimant must prove that the acquisition value of the sale right is insufficient.

The contents of the decision shall be the same as attached.

Article 94 (Scope of Transfer Income Tax)

Article 96 (Transfer Price)

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 28,948,770 for the Plaintiff on September 3, 2007 shall be revoked.

1. Details of the disposition;

가. 원고는 2002. 5. 31. 임☆☆으로부터 서울 마포구 ●●동 340 ◎◎◎◎◎아파트 110동 901호에 대한 분양권(이하 '이 사건 분양권'이라 한다)을 매수하여 보유하고 있다가 2003. 6. 3. 이 사건 분양권을 김◇◇에게 양도한 후 실지거래가액을 기준으로 취득가액이 206,000,000원, 양도가액이 236,000,000원이라고 하면서 피고에 대하여 그에 대한 양도소득세 3,645,000원을 신고ㆍ납부하였다.

B. The Defendant issued the instant disposition on September 3, 2007, on the ground that the transfer value was 205,000,000 won (the contract amount of KRW 37,200,000 + the intermediate payment of KRW 55,800,000 + the premium of KRW 112,000,000) and the acquisition value was 113,000,000 (the contract amount of KRW 37,20,000 + the intermediate payment of KRW 55,80,000 + the premium of KRW 20,000 + the premium of KRW 20,000).

[Ground of recognition] Evidence Nos. 3, Evidence Nos. 4-1, 2, 5, Evidence Nos. 6-1, 2, Evidence Nos. 7, Evidence Nos. 1 and 2, Evidence Nos. 3-1, 2, and 4-7, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

At the time of the acquisition of the right to sell in this case, the premium was actually paid in KRW 54,00,000, but the contract was prepared to pay only KRW 20,000,000 in accordance with the practice at the time of the acquisition of the right to sell in this case. The defendant believed that only 20,000,000 won was paid as the premium at the time of the acquisition by the plaintiff while reliance on only the content of the contract, and it was erroneous in the disposition of this case. Thus, the part of the disposition of this case which exceeds the transfer income tax calculated by including the premium amount of KRW 34,00,000 ( KRW 54,00,000 - 20,000,000), which is not considered in the disposition of this case, shall be revoked.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

Comprehensively taking account of the purport of each statement in Gap evidence Nos. 3 and Eul evidence Nos. 3-1 and 2-2, the plaintiff purchased the sales right of this case, which is in the status of 37,200,000 won of the sales price, from Si/Gun/Gu on May 31, 2002, and the approval seal contract (Evidence No. 3) written at the time the plaintiff purchased the sales right of this case by paying KRW 57,20,000 of the sales price and KRW 37,200,000 of the sales price paid for the premium of this case and KRW 37,200,000 of the sales price paid for the premium of this case shall be proved by the plaintiff, unless there are special circumstances (see Supreme Court Decision 92Nu282, Nov. 24, 192).

원고가 이 사건 분양권을 취득할 당시 위 검인계약서에 기재된 권리금 20,000,000원 이외에 34,000,000원을 더 지급하였다는 사실에 부합하는 듯한 갑 제1호 증의 1, 2, 갑 제2호증의 각 기재, 증인 나★★, 유○○의 각 증언은 믿기 어렵고, 갑 제8호증의 1, 2, 갑 제9호증의 각 기재만으로는 이를 인정하기 부족하고 달리 이와 같은 사실을 인정할 증거가 없다.

Therefore, the Plaintiff’s assertion is without merit, and the instant disposition imposing capital gains tax is legitimate on the premise that the premium paid by the Plaintiff at the time of acquiring the right to sell the instant case is KRW 20,000,000.

3. Conclusion

Thus, the plaintiff's claim seeking revocation of the disposition of this case is dismissed as it is without merit.