Suwon District Court 201Guu11342 (27 April 2012)

Early High Court Decision 201J 1244 (Law No. 1011.09)

The transfer value of the right of sale is based on the actual transaction price, and it is applied 10 years of the exclusion period by preparing and submitting a double contract.

Since the transfer value of the right to acquire real estate, such as the right to sell, is stipulated to be based on the actual transaction price, the argument that the transfer value of the right to sell should be the standard market price cannot be accepted, and as long as a false double contract is prepared and submitted actively, it constitutes fraud and other illegal acts, the exclusion period of imposition is ten years.

2012Nu14684 Revocation of Disposition of Imposing capital gains tax, etc.

Park AA

port of origin

Suwon District Court Decision 201Guhap11342 Decided April 27, 2012

January 24, 2013

February 21, 2013

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff, including the part arising from the supplementary participation.

The judgment of the first instance is revoked. The defendant's disposition of imposition of capital gains tax of KRW 000 on January 21, 201 against the plaintiff on January 21, 201 is revoked (it appears that penalty tax is included in the recorded tax amount).

1. Quotation of the reasons for the judgment of the first instance;

The reasons why the court should explain in this decision are as follows, and the reasons why the court added the judgment on the plaintiff's argument to "paragraph 2" are as stated in the judgment of the court of first instance, and they are cited by Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional determination

A. The part of the assertion that the transfer value of the sales right of this case is 000 won or more is legitimate

(1) Summary of the Plaintiff’s assertion

In the case of the transfer of the right to acquire real estate, such as the transfer of the sales right in this case, the transfer value shall be reported as the standard market price, and the standard market price corresponding to the transfer value of the sales right in this case refers to the amount calculated by adding the amount paid until the date of transfer and the amount equivalent to the premium as of the date of transfer plus the amount equivalent to the premium as at the premium as at the date of the transfer. Therefore, it is legitimate to report the transfer income tax base to the tax authority for the transfer of the sales right in this case to KRW 000,000 corresponding to the amount added the premium to the money paid by the plaintiff to purchase the apartment in this case while transferring the sales right in this case to the intervenor. Furthermore, as argued by the intervenor, the actual transfer value of

(2) Determination

(A) According to Articles 94(1)2 (a) and 96(1)2 of the former Income Tax Act (amended by Act No. 6781, Dec. 18, 2002; hereinafter referred to as the "Income Tax Act"), which applies to the disposition of this case, with respect to the transfer value of the right to acquire real estate (including the right to acquire a building and its appurtenant land at the time of completion of the construction) such as the right to sell this case, the transfer value of the right to sell this case shall be based not on the standard market price at the time of the transfer of the property, but on the premise that it is legitimate to report the transfer value of the right to sell this case as the standard market price, the Plaintiff’s assertion that it is legitimate to report 00 won that the transfer value of the right to sell this case would be harmful to the standard market price based on the transfer value of the right to sell this case cannot be accepted without further review.

(B) In addition, according to the facts cited earlier, evidence, and the purport of the entire arguments and arguments of No. 13-1 to No. 13-4 additionally submitted by the defendant in the trial court, the intervenor acquired the sales right of this case from the plaintiff on March 29, 2002, and paid a total of KRW 000 to the plaintiff as the acquisition price, or as a substitute for the plaintiff's obligation, the intervenor can recognize the fact that the intervenor actually paid it to the plaintiff or as a substitute for the plaintiff's obligation, and the fact-finding results of all the evidence submitted by the plaintiff and the fact-finding with the

(C) Ultimately, the Plaintiff’s assertion that the instant disposition was unlawful on the ground that the transfer value of the sales right of this case can be reported as the standard market price, and that the actual transaction value between the Plaintiff and the Intervenor cannot be readily determined as 000 won.

B. The part on the assertion that the instant disposition is null and void beyond the exclusion period of the imposition right

(1) Summary of the Plaintiff’s assertion

According to Article 26-2 (1) 3 of the Framework Act on National Taxes, and Article 26-2 (1) 3 of the Framework Act on National Taxes provides that "no national tax may be imposed if it is not exercised for five years from the date on which it is possible to impose it, and the defendant issued a disposition of this case imposing capital gains tax on January 21, 201 after five years from June 1, 2002, which is the day following the expiration date of the period for filing the final return of tax base. Thus, the disposition of this case is null and void after the lapse

(2) Determination

(A) Article 26-2 (1) of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006) provides for the exclusion period of the national tax imposition, and Article 16-2 (1) of the former Framework Act on National Taxes provides for the exclusion period of the national tax imposition, and where a taxpayer evades, refunds, or deducts the national tax by "Fraud or other unlawful acts", for 10 years ( Subparagraph 1) from the date on which the national tax is assessable, if a taxpayer fails to file a tax base return within the statutory due date of return, it shall be 7 years (subparagraph 2) from the date on which the national tax is assessable, and where a taxpayer does not fall under subparagraphs 1 and 2 above, it shall be 5 years (subparagraph 3) from the date on which the national tax is assessable, and it shall be 5 years from the date on which the national tax is assessable (wholly amended by Act No. 9919 of Jan. 1, 2010).

(B) However, in full view of the facts cited earlier, Gap evidence Nos. 1 and 2, and testimony of KimG witness at the first instance court on March 29, 2002, and the plaintiff, when transferring the sales right of this case to the intervenor on March 29, 2002, the plaintiff actually prepared a sales contract (Evidence No. 2) with the transfer price of 00 won, and the tax authority reported and paid the transfer income tax base related to the transfer of the sales right of this case to the tax authority, it is recognized that the transfer price was submitted with the sales contract (Evidence No. 1) with the transfer price of 00 won, and there is no counter-proof otherwise. Therefore, the plaintiff can be deemed as having reported the transfer income tax on the transfer of the sales right of this case to the tax authority, and it is reasonable to view that the transfer period of the transfer income tax of this case was 100 years after the expiration of the exclusion period of the transfer income tax of this case as the initial period of 201 years.

(C) Ultimately, we cannot accept the Plaintiff’s assertion on this premise that the exclusion period of the capital gains tax imposition right is five years.

3. Conclusion

Then, the plaintiff's appeal is dismissed for lack of reason.