Early High Court Decision 201Du1723 ( October 28, 2011)

Since it is confirmed that the amount of subrogation is paid in lieu of the payment of the purchase price, the amount of subrogation constitutes actual acquisition value.

Since it is confirmed that the provisional payment on a seller's loan obligations and litigation costs, etc. in lieu of the payment of the purchase price after the purchase of real estate constitutes the purchase price and thus, it is illegal to consider the acquisition price in the approval agreement as the actual acquisition price.

Article 97 of the Income Tax Act

2011Guhap10912 Revocation of Disposition of Imposing capital gains tax

XX

port of origin

September 21, 2012

October 12, 2012

1. On February 9, 2011, the part of the Defendant’s refusal disposition against the Plaintiff regarding the amount exceeding KRW 000 among the disposition of correction claim against the Plaintiff for the transfer income tax of KRW 000 for the year 2010 is revoked.

2. The plaintiff's remaining claims are dismissed.

3. One-third of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The defendant's rejection disposition against the plaintiff on February 9, 201 against the plaintiff of 201 is revoked.

1. Details of the disposition;

A. On March 3, 2005, the Plaintiff jointly purchased and owned each of the above buildings on the ground 00 marri 000 marri 4,952 marri, and owned each of the above buildings on April 4, 2005 (hereinafter collectively referred to as “each of the above land and buildings”), and on April 9, 2010, transferred the Plaintiff’s shares (=1/2) to KimA.

B. On May 31, 2010, the Plaintiff calculated the acquisition value of each real estate of this case as KRW 000, and filed a preliminary return on the tax base of capital gains tax for the year 2010 to the Defendant, but did not pay the preliminary return. Accordingly, on August 11, 2010, the Defendant imposed and notified the Plaintiff KRW 00 (including additional taxes) of capital gains tax for the year 2010 to the Plaintiff.

C. On November 11, 2010, the Plaintiff asserted that the actual acquisition value of each real estate of this case is KRW 000, and thus, the acquisition value initially reported should be reduced. However, the Defendant rejected the above request for correction on February 9, 201 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on June 28, 201, but the said appeal was dismissed.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, Eul evidence No. 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The sales contract of each real estate of this case, which the Plaintiff submitted to the Defendant at the time of filing a request for correction of capital gains tax reduction, states that the sales price of each real estate of this case is KRW 000, and the Plaintiff, upon purchasing each real estate of this case, subrogated the total amount of KRW 000,000 in lieu of payment of the sales price. Therefore, the actual acquisition price of each real estate of this case may be at least KRW 00,000, which is the Plaintiff’s share (=1/2) out of the sales price under the above contract, at least KRW 00. The Defendant’s disposition rejecting the Plaintiff’s request for correction of capital gains tax reduction by deeming the acquisition price of each

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) The actual acquisition value of each real estate of this case

The actual transaction value of the pertinent asset, which serves as the basis for calculating capital gains tax, refers to the value of assets acquired or transferred at the time of transaction and received as a consideration therefor, which is objectively recognizable by a sales contract or other documentary evidence (see, e.g., Supreme Court Decision 2010Du27592, Feb. 9, 2012). Furthermore, barring any special circumstance, the seal of approval signed by the parties to the transaction and approved by the head of a Si/Gun, etc. shall be presumed to have been prepared according to the sales contract between the parties, and the fact that the contract was prepared differently from the actual transaction (see, e.g., Supreme Court Decision 93Nu2353, Apr

Based on the above legal principles, the Plaintiff purchased each real estate of this case and obtained approval seal on the above sales contract for the application for ownership transfer registration. The above approval seal contract can be acknowledged that the acquisition value of the real estate of this case is 000 won (=land 000 won + building 000 won). The Plaintiff filed a preliminary return on the tax base of capital gains belonging to 2010, and reported the amount of KRW 000,000, which is the amount equivalent to one’s own share (=1/2) out of the sales price under the above approval seal contract, to the Defendant as acquisition value. According to each of the above recognition facts, since the Plaintiff’s acquisition value of each real estate of this case is presumed to be 00,000, the burden of proving that the actual acquisition value of each real estate of this case exceeds the above amount is disputed.

Therefore, I will examine whether the real acquisition value of the real estate of this case exceeds 000 won, which is the acquisition value under the above approval seal contract.

In full view of the purport of Gap's evidence Nos. 3 through 5 (including paper numbers), the plaintiff purchased each of the real estate of this case and paid 000 won (=00 won +00 won +00 won) to the above KimB by subrogation of 000 won in total as stated in the following table, on September 15, 2005, in lieu of the payment of the purchase price, the plaintiff subrogated for the total amount of loans to the seller KimB and the non-party OB of the seller KimCC and its affiliated KimCC through DaD on September 15, 2005, and on the same day, paid 00 won in total as the purchase price of each of the real estate of this case.

However, it is not sufficient to recognize that the Plaintiff paid the purchase price in excess of the above amount to KimB solely on the basis of the descriptions of Gap evidence Nos. 3, 5, and 6 (including paper numbers), and there is no other evidence to acknowledge it.

Therefore, it is reasonable to view the above KRW 000 paid by the Plaintiff to KimB as the real acquisition value of each real estate of this case. Therefore, the Plaintiff’s assertion is justified within the above recognition scope, and the remainder is without merit.

(2) The due amount of tax

If the actual acquisition value of each real estate of this case is 000 won, the legitimate amount of capital gains tax accordingly is 000 won as shown in the attached tax calculation table.

D. Sub-committee

Therefore, the part which exceeds the above legitimate tax amount among the disposition of this case is unlawful, and the remainder is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.