Cho High Court Decision 201Do5170 (Law No. 112, 04.30)

Since it is recognized as a false sales contract, a disposition that makes the sales price in the contract as the transfer price is illegal.

Since the sale price stated in the contract and receipt prepared by selling commercial buildings is not stated in the actual transaction price, but it is recognized as a false contract prepared by the intermediary's recommendation under the intention to evade the transfer income tax at the time of the buyer's transfer of commercial buildings, the disposition using the sale price in the contract as the transfer price is illegal.

2012Gudan17134 Revocation of Disposition of Imposing capital gains tax

KimA

The Director of the Pacific District Office

March 6, 2013

April 3, 2013

1. The Defendant’s disposition of imposition of capital gains tax of KRW 000 on September 1, 201 to the Plaintiff on September 1, 2011 shall be revoked.

2. The costs of the lawsuit are incidental to the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff acquired 00,000,000 commercial buildings in OOOOOO apartment located in Daegu-si, Daegu-si (hereinafter “instant commercial building”) on May 28, 2009, and transferred it to DoD on May 12, 2010, and did not report transfer income tax on the ground that the transfer value is lower than the transfer value.

B. On September 1, 201, the Defendant considered KRW 000, which is the sales value recorded in the register of the real estate register of the instant commercial building, as the transfer value, and determined and notified KRW 000, which is the acquisition tax base, to the Plaintiff on September 1, 201 (hereinafter “instant disposition”).

[Recognition] Facts without any dispute, Gap evidence 2, Gap evidence 10, Eul evidence 10, and Eul evidence 1 (hereinafter each evidence includes a natural disaster), and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The Plaintiff sold the instant commercial building to GeumD in KRW 000, and this GG, a licensed real estate agent, made a request to enter the sales amount of KRW 000, not the subject of the LG transfer income tax, but the high amount of the transfer income tax, and made a seal on the receipt to that effect. Since the transfer value of the instant commercial building is lower than the acquisition value, the disposition of this case is unlawful since the transfer value of the instant commercial building is not subject to the transfer income tax.

(b) Fact of recognition;

(1) On March 17, 2008, EE Industry Co., Ltd., a representative director of the Plaintiff, purchased (sale) the instant commercial building from FF Construction to the Plaintiff on April 24, 2009, and the Plaintiff completed the registration of ownership transfer on the instant commercial building on May 28, 2009. In this case, the Plaintiff drafted a written approval of the purchase of the instant commercial building from EE Industry Co., Ltd. on April 13, 2009.

(2) After that, on May 11, 2010, the Plaintiff (the Plaintiff’s husband, the Plaintiff’s husband, was led by KimK) sold the instant commercial building to GeumD through thisG, a licensed real estate agent, and the sales amount was KRW 000, but the balance was paid after excluding the bank loan amount of KRW 00,000.

(3) However, as of May 6, 2010, the Plaintiff drafted a real estate sales contract (Evidence 2-1) stating that the Plaintiff sold the instant commercial building to Dodddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

(4) At the time of the conclusion of the above sales contract, the above GG prepared to the Plaintiff a written confirmation (Evidence A7) that the buyer bears the burden of the transfer income tax on the commercial building of this case.

Recognizing facts, Gap evidence Nos. 1, Eul evidence Nos. 4 through 8, Eul evidence Nos. 2, and 3, each evidence of witnesses G and goldD, and the purport of the whole pleadings

C. Determination

(1) According to Article 96(1) of the Income Tax Act, the transfer value shall be based on the actual transaction value, which is the actual transaction value between the transferor and the transferee.

(2) On the basis of the facts as seen earlier, the Plaintiff sold the instant commercial building to DoD, and KRW 00,000, which is the purchase price entered in the contract and receipt written, did not enter the actual transaction price, but falsely drawn up upon the recommendation of DoG, and the actual transaction price of the instant commercial building is determined to be 00,000. (Inasmuch as the Plaintiff’s purchase price of the instant commercial building from eE Industry Co., Ltd. is 00, the purchase price of the instant commercial building is 00, and thus, if the Plaintiff and DoD enter the sales price in accordance therewith, it appears that the transaction is the so-called “business-contract” written under the intention that the transfer income tax may be evaded at the time of transfer in the future.

(3) The transfer transaction in this case did not generate any profit from the transfer, and the imposition disposition of this case on the premise of the occurrence of gains on transfer is unlawful, since the transfer transaction in this case is less than the acquisition value.

3. Conclusion

Then, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.