Seocho 2013west 3761 (2014.08)

No reason exists to deem that the source of the issue was given or received under the name other than the transfer price, the tax disposition is legitimate.

In view of the fact that it is unreasonable to regard the land lease contract of this case as a separate independent contract from the land sale contract of this case, it is reasonable to regard the key rent as a part of the transfer price. Since the key debt repayment amount also seems to be part of the transfer price of this case, the Defendant’s taxation of the transfer income tax

Article 96 of the Income Tax Act

2014Gudan5301 Revocation of Disposition of Imposing capital gains tax

CHAPTER A

O Head of tax office

October 29, 2014

November 26, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

In June 1, 2013, the Defendant revoked the disposition of imposition of the capital gains tax OOOO in the year 201 against the Plaintiff.

1. Details of the disposition;

A. On September 10, 2010, the Plaintiff acquired an O-dong 000 square meters of land (hereinafter “instant land”) and transferred it to GaB on April 12, 2011.

B. On June 29, 201, the Plaintiff reported and paid capital gains tax of KRW 000 on the premise that the acquisition value of the instant land was KRW 0000 and the transfer value was KRW 0000. However, on June 1, 2013, the Defendant issued a correction and notification of KRW 000 of capital gains tax on the premise that the transfer value of the instant land was KRW 000,000, under the premise that the transfer value of the instant land was KRW 000.

C. The Plaintiff underwent the pre-trial procedure.

[Grounds for Recognition] Unsatisfy, Gap 1 to 3, 5, Eul 1, 2

2. Whether the instant disposition is lawful

(a) Facts of recognition;

(1) The Plaintiff’s acquisition and transfer of the instant land

On July 30, 2008, the Plaintiff prepared and concluded a monetary loan agreement including the following contents (hereinafter referred to as “money loan agreement of this case”) with KimCC, and set up a collateral security in the name of the Plaintiff as to the land of this case for the purpose of securing the claim.

- The creditor lent KRW 000 to the debtor on July 4, 2008. The debtor will pay in full on September 4, 2008. The interest rate shall be 2% per annum. The creditor, the debtor KimCC, the joint and several surety Kim DDR representative director, the creditor, the debtor, and the Kim DDD and the KCC representative director, the joint and several surety.

○ The auction procedure on the instant land, based on the foregoing right to collateral security, was commenced. In the auction procedure, the Plaintiff was awarded a successful bid of KRW 000 on September 10, 2010, while the Plaintiff received a dividend of KRW 000,000 out of the reported amount of the claim (= principal amount of KRW 000 + interest of KRW 000).

On December 29, 2010, the Plaintiff drafted and concluded a sales contract to sell the instant land to ParkB and Kim H in the presence of the representative director of the FF Construction (ju), the following contents, which is to sell the instant land at KRW 000 (hereinafter “instant sales contract”).

-The down payment of 000 won shall be paid at the time of the sales contract, and the seller shall receive it. The remainder 000 won shall be paid on April 24, 2011.

(2) Circumstances of the construction and sale of the instant land-based collective housing

At the time of ○, the project was being implemented to newly build and sell multi-family housing on the ground of the instant land (hereinafter referred to as “multi-family housing”).

Before purchasing the instant land from the Plaintiff, on December 6, 2010, the ParkB prepared and concluded a contract to acquire all rights related to the said apartment house and construction from the EE for the project owner of the said apartment house (hereinafter referred to as the “instant contract for transfer and acquisition”), which includes the following:

- (Land of this case) Since the ownership transfer registration is premised on the Plaintiff’s transfer to ParkB, the content of the following contract becomes effective only when ParkB entered into a contract with the Plaintiff, and both parties thereafter implement the contents of the contract. Upon entering into a contract, 000 won shall be paid in cash. The remainder of 000 won shall be paid in cash from among the completed buildings after ParkB completed the construction of the building.

On December 30, 2010, ○ ParkB prepared and concluded an investment agreement agreement with Kim H on the instant land and multi-family housing (hereinafter referred to as the “investment agreement agreement of this case”) with the following contents in the presence of FF Construction (State Kim II) Kim H.

- Investment amounts shall be deposited into the FF Construction Head of Tong. Total amount of investment shall be KRW 000,000. The investor representative Kim H also shall be the joint contractor at the time of the purchase and sale of land and right of permission.

In light of the content of the change of the owner of the instant multi-family housing, each of the instant multi-family housing units is verified on December 22, 2006 and five others, KimCC on July 30, 2008, KimCC on October 17, 2008, and ParkB on April 25, 201, and the details of the change of the construction are confirmed as follows: (a) the KJ Construction on May 16, 2007; (b) the KK Construction (State) on July 30, 208; (c) the FF Construction (State) on April 25, 201; and (d) the LL Construction (State) on March 29, 2012.

(3) Details of receipt of money

○○ Kim H deposited KRW 000 on December 30, 2010 to the account in the name of F Construction (State). F Construction (State) deposited KRW 000 on the same day to the Plaintiff (hereinafter referred to as “instant KRW 1”).

around March 16, 201, 201, ○○○, the spouse of ParkB, paid KRW 000 to the Plaintiff (hereinafter referred to as “instant KRW 2”).

○ ParkB remitted KRW 000 to the Plaintiff on April 12, 2011, but revoked the remittance of KRW 000,000 among them, and then withdrawn in a check and deliver KRW 000,000 to the Plaintiff on the following day, and the remaining KRW 000 to the Plaintiff, an EE employee, and the said N delivered KRW 000 to the Plaintiff (the above KRW 000,000, hereinafter referred to as “the instant KRW 3 gold”).

[Ground of recognition] Facts without dispute, Gap 4, 6, 7, 11, 12, 16, 17, 20, Eul 2, 3, 5, Han NN and the purport of the whole pleadings

B. The plaintiff's assertion

For the following reasons, the transfer value of the instant land is merely KRW 000,000, and thus, the instant disposition is unlawful on a different premise.

The sales contract of this case, which sets the sales amount of KRW 000, was immediately invalidated as the down payment on December 29, 2012, which is on the date of the contract. Meanwhile, on April 12, 2011, the Plaintiff newly prepared and concluded a sales contract (hereinafter referred to as “the second sales contract of this case”) with the ParkB to sell the land of this case in KRW 000,000, and received KRW 000,000 on the date of the contract, including KRW 00,000, on the following day.

On December 30, 2010, after the sales contract of this case loses its effect, the FF Construction Co., Ltd. decided to lease the land of this case from the Plaintiff for the construction of the apartment building of this case. The FF Construction Co., Ltd. set up a lease contract (hereinafter “the instant lease contract”) with a period of three months and a period of three months and a rent of 000 won, and paid KRW 000 out of the rent to the Plaintiff on the day of the contract. Accordingly, the FF Co. 1 of this case is not the purchase price of the land of this case.

Since ○○, the FF Construction (State) renounced the construction of the instant apartment, and the largest MM would complete the construction. On March 17, 2011, the Plaintiff paid KRW 000 to the Plaintiff the rent of the instant land. Accordingly, the FFF did not constitute the purchase price of the instant land.

around April 13, 201, 201, ○ ParkB delivered KRW 000,000 as down payment stipulated in the instant transfer and acquisition agreement to HanN, an EE employee, and the said HanN granted the said money to the Plaintiff for the repayment of the loan stipulated in the instant contract for cash loan. Accordingly, the said KRW 3 of this case is not the purchase price of the instant land.

C. Determination

(1) Principle of substantial taxation and transfer value of the instant land

The provisions pertaining to the calculation of tax base in the tax-related Acts shall be applied according to the substance regardless of the name or form of the income, profit, property, act or transaction (Article 14(2) of the Framework Act on National Taxes), and in cases where it is recognized that the benefit of this Act or the tax-related Acts is to be unduly obtained by indirect means via a third party or by means of two or more acts or transactions, it shall be deemed that the party has made a direct transaction or has engaged in a single act or transaction in accordance with the economic substance thereof (Article 14(3)

In light of the above legal principles, barring any other special circumstances, it is reasonable to deem that both KRW 1 and KRW 3 of this case were paid to the Plaintiff as the purchase price of the land of this case. Therefore, the transfer price of the land of this case shall be KRW 000,000.

(2) Whether there is any circumstance to deem that the KRW 1 to 3 of the instant gold bullion was given and received under any name other than the purchase price

The joint and several liability of the KCC for the Plaintiff is as seen earlier, and according to the respective statements in the Evidence Nos. 9 and 15, the Plaintiff and FF Construction (State) may recognize the fact that the Plaintiff and FFB prepared the instant lease agreement, and that the Plaintiff and FFB prepared the instant secondary sales contract. However, considering the following various circumstances, it is difficult to accept the Plaintiff’s assertion that the Plaintiff and FFB paid the instant KRW 1 and 2 as the land rent as the land rent, and that the instant KRW 3 won was paid as the loan repayment.

○○ Contract deposit is not a requirement of establishment and effect of a sales contract, and it cannot be said that the sales contract is not established or its validity is lost immediately only by the fact that the down payment is not paid.

If the sales contract of this case was invalidated on the date of the preparation of the contract as the down payment, there is no reason for the following day, Kim H and ParkB to prepare and conclude the investment agreement of this case, or to deposit KRW 000 to F Construction (F) by Kim H.

○ FF Construction is merely a construction work that is not the owner of the instant multi-family housing, and thus, there is no reason to directly lease the instant land or to pay the rent therefor.

○ In the event that the sales contract of this case loses its effect on the date of conclusion of the contract due to a down payment of KRW 000,000, immediately following the following day, it is difficult for the owner of the building or the construction company to rent KRW 1/2 through 1/3 of the sales price and pay KRW 000 on the same day rent. In particular, according to the Plaintiff’s assertion, according to the Plaintiff’s assertion, mostM was disadvantageous to the Plaintiff, such as exercising a lien on the instant land at the time of the preparation of the instant lease contract, and thus, the EE or GB/M did not have any reason to rent the said land by paying a high-amount rent to the Plaintiff.

According to the above change of construction work, the contractor was changed from KK to FF construction (the State) on April 25, 2011, and thus, it is contradictory to the argument that FF construction (the State) has already renounced construction work on March 201, and that MM has reached the payment of rent.

○ There is no reason to deem that the Plaintiff reported 000 won received from FF Construction (State) as rental income, or claimed 000 won for the payment of unpaid rents to FF Construction (State).

○ In the auction procedure with respect to the instant land, the Plaintiff completed an application for repayment of the leased principal amounting to KRW 000,000, and the Plaintiff filed a comprehensive income tax return to cover some of the loan interest amounting to KRW 000,000,000, and there is no dispute between the parties or there is no clear dispute between the Defendant and the parties. Thus, since the Plaintiff’s loan claim against KimCC after the said dividend remains, the loan interest amounting to KRW 000,00,000 (= KRW 0000 - KRW 000) and the damages for delay are remaining, there is no reason that EE, a joint and several guarantor, has to pay

○○, Kim H, and Kim II consistently stated that the purchase price of the instant land is KRW 000 (3.5), while Gangnam stated that whether the land rent is included in the total purchase price (A. 21).

(3) Conclusion

Therefore, the instant disposition is lawful on the premise that the transfer value of the instant land is KRW 000.

3. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit.