Cho High 201-Gu1024 (201.09)

It is legitimate to apply the conversion price as the actual transaction price is unknown at the time of acquisition.

It is legitimate to apply the conversion value on the ground that the actual transaction value at the time of acquisition cannot be known due to lack of recognition that a loan claim was acquired as a substitute payment. Even if a part of the purchase price was impossible to be recovered, this is due to a quasi-loan for consumption and a limited contract on rights, and thus, cannot be deemed

2011Guhap3106 Revocation of Disposition of Imposing capital gains tax

XX

Head of Dong Daegu Tax Office

November 2, 2011

December 21, 2011

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 28,845,130 for the Plaintiff on March 1, 2011 shall be revoked.

1. Details of the disposition;

A. On January 14, 2009, the Plaintiff transferred to the Defendant the instant land: (a) around November 20, 2009, the Plaintiff transferred the instant land to Nonparty 13,889/47,603 shares among the 10,217 square meters of land in Seoyang-do, Seoyang-do, Chungcheongnam-do; (b) around November 20, 2005, the Plaintiff acquired 600,000,000,000-0, 952 square meters of land; and (c) around November 20, 2005, the Plaintiff did not transfer the said land to Nonparty 2,500,000,000 won as payment in kind; and (d) around November 20, 2008, the Plaintiff did not transfer the transfer income tax base to Nonparty 570,700,000,000 won of land.

B. On March 1, 2011, the Defendant recognized the acquisition value as KRW 528,827,09, the conversion value under Article 176-2(2) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter “former Income Tax Act”) on the ground that the actual transaction value required to acquire the instant land cannot be confirmed, and calculated the transfer income tax for the year 2008 as KRW 28,845,130, and imposed it on the Plaintiff on March 1, 2011 (hereinafter “instant disposition”).

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

2. The plaintiff's assertion is as follows.

A. The Plaintiff acquired the instant land as a substitute payment of KRW 600,000,000 as a loan to thisA, and thus, the acquisition price of the instant land ought to be KRW 600,000,000, which is the actual transaction price.

B. The Plaintiff was not paid KRW 400,000,000 among the transfer value of the instant land in KRW 570,000,000, and KRW 400,000,000 for the purchase-price claim amount to SeoB was limited to the assets held by BB, and its responsible property was limited to 000-0 land, 000-0 land, 000-0 land, and 000-0-0 land. As such, the Plaintiff did not receive dividends in the voluntary auction procedure for the above 00-0 land, 00-0 land, 00-0 land, and 00-0-0 land, the above 400,000,000 won should be excluded from the transfer value.

3. Related statutes;

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

4. Determination

A. Judgment on the Plaintiff’s assertion No. 2. A

According to the provisions of Articles 96 (1), 97 (1) 1 and 144 (7) of the former Income Tax Act, the acquisition value shall be the actual transaction value required for the acquisition of assets, but where it is impossible to confirm the actual transaction value at the time of acquisition, the acquisition value shall be determined by the transaction example, appraisal value, or conversion value prescribed by the Presidential Decree.

In full view of the overall purport of the pleadings in the statement No. 6-2 and No. 4, the Plaintiff shall be deemed to have settled the amount of money invested in real estate development and investment on November 15, 2005, and after July 2001, the Plaintiff’s share of the Plaintiff as of November 15, 2005, and as of November 15, 2005, KRW 200,000,000 on the “real estate investment (such as the instant land, etc.)” and the “real estate redevelopment (J.S.), and KRW 300,000,000,000 on multi-family house (O-dong 00-000,0000,000 won on the instant land, and the method of settlement is recognized to have been 0,000,000,000 won on the instant land’s ownership of the Plaintiff at the time of the transfer of the ownership of the instant land to the Plaintiff.

However, the following facts are revealed in Gap evidence 6-2, Eul evidence 2-2, 3-1, 2-1, 2-2, and 3: ① The above sales contract (Evidence No. 6-2) provides that loans worth KRW 100,000,000 out of the price of the land of this case as collateral shall be appropriated for the plaintiff's succession to the loan of this case as collateral. Since the plaintiff acquired the land of this case and succeeded to the obligation to pay KRW 100,000,000 as loan amount of KRW 50,000,000, and it is not inconsistent with the amount of settlement agreed between the plaintiff and this case-A-2; ② The plaintiff acquired the land of this case under the pretext of 00,000,000 won as loan amount of KRW 10,000,000,000 as loan amount of KRW 10,000,000,000 as loan amount of 0,000.

Therefore, the Plaintiff’s assertion is without merit, since there is no illegality in the disposition to apply the conversion price on the ground that the actual transaction price cannot be known at the time of acquiring the land in this case.

B. Judgment on the Plaintiff’s assertion No. 2.B.

The Income Tax Act adopts the so-called principle of confirmation of a right to taxable income, deeming that a right that is a cause of income has been realized when there is no income in reality, and adopts the so-called principle of confirmation of a right that calculates taxable income: Provided, That even if a claim that is the cause of income has arisen, if it is objectively apparent that a claim that is the cause of income subject to taxation becomes impossible to recover due to the debtor's bankruptcy, etc. and it becomes impossible to realize the income in the future, the income tax that is the subject of economic benefits loses its premise, and such income cannot be imposed on taxable income by asserting and proving such circumstance. However, it should be clearly stated that the taxpayer has no income subject to taxation by asserting and proving that there is no income subject to taxation. In such a case, whether the claim is impossible to recover shall be determined by an objective method of assessment by taking into account the debtor's financial status and payment ability, etc. (see, e.g., Supreme Court Decision 201Du1536, Oct. 25,

In full view of the purport of the argument in Gap evidence No. 8, the plaintiff sold the land of this case to SeoB on November 20, 2008 at KRW 570,00,000,000 on the same day, and the contract deposit of KRW 20,000 on November 10, 2008 is paid KRW 220,000,000 as part payment on November 19, 2008, and the remaining amount of KRW 330,000,000 is paid on November 19, 208. The plaintiff was paid only KRW 162,659,010 among the above purchase price, and completed the registration of ownership transfer on the land of this case to SeoB on November 20, 208; the plaintiff was 162,659,000,000,000-B bonds are not applied to the loan of this case by means of loan borrowing contract between SeoB and SeoB on November 21, 20000,00000-B.

According to the above facts, even if the plaintiff was unable to recover part of the purchase price of the land of this case, it is merely due to the plaintiff's agreement on quasi-loan for consumption and restriction of rights, and it cannot be viewed as being impossible to recover due to the debtor's bankruptcy, etc.

5. Conclusion

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