Even if the value entered by the purchaser as the acquisition value in the return of capital gains tax, it cannot be determined by the price properly reflected in the actual sale price.

If it is difficult to conclude that the price is reflected in the actual sale price even though the acquisition price is stated in the report of transfer income tax on the transfer of real estate, the accurate price should be determined and corrected.

Article 14 of the Framework Act on National Taxes

Article 92 (Calculation of Tax Base of Transfer Income)

2017Guhap21396 Revocation of a disposition imposing capital gains tax

Tear 00

00. Head of tax office

September 22, 2017

October 20, 2017

1. The Defendant’s disposition of imposition of KRW 0 of the transfer income tax for the year 2000 against the Plaintiff on October 000 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On October 00, 200, the Plaintiff completed the registration of ownership transfer on the instant real estate in the name of KimA on October 00, 200, after being awarded a successful bid of at least KRW 00,000,000,000 for land and its ground buildings (hereinafter referred to as “instant real estate”), and completing the registration of ownership transfer on the same day.

B. On October 00, 200, KimA completed the registration of ownership transfer under its own name with respect to the instant real estate, and thereafter, KimA completed the registration of ownership transfer in the name of this B and NewCC (hereinafter referred to as "B, etc.") on the same day.

C. The Plaintiff sold the instant real estate to KimA for KRW 00,00,000, and subsequently filed a preliminary return on the capital gains tax on October 00, 2010, but KimA did not report capital gains tax.

D. The defendant conducted an investigation of capital gains tax on the plaintiff around October 2000, and KimA does not have to do so.

The Plaintiff only lent the instant real estate to BB, etc. as an calendar, and the substance thereof determined that the Plaintiff transferred the instant real estate to 00,000 won, and notified the Plaintiff of KRW 0 of the transfer income tax belonging to 2000 (hereinafter “the first transfer income tax”).

E. The J commissioner of the J Regional Tax Office shall conduct a comprehensive audit of the defendant around October 200 and then B by the plaintiff

On October 00, 2000, the Defendant ordered the Plaintiff to rectify the transfer of the instant real estate to KRW 00,000,000, and accordingly, the Defendant notified the Plaintiff of the correction and notification of KRW 0 of the transfer income tax (including additional tax, hereinafter referred to as “the second transfer income tax”) for the year 2010 (hereinafter referred to as “the instant disposition”).

F. The plaintiff is dissatisfied with the disposition of this case and raised an objection to the Commissioner of the National Tax Service on October 00000

However, it was dismissed, and the request for review was made to the Commissioner of the National Tax Service on 2000.00.00.00.

[Ground of recognition] Each entry of Gap evidence Nos. 1, 2, 5, 7, 9-7, 9-9-10, 9-13 through 18, Eul evidence Nos. 1 and 4 (including the number with each number; hereinafter the same shall apply), witness Kim K's partial testimony, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff did not transfer the instant real estate to BB, etc., but transferred the said real estate to KimA, and the transfer price is merely KRW 00,000,000, which is the basis for imposing the instant first capital gains tax.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) According to the real estate sales contract dated 00.00.00.00, prepared between the Plaintiff and KimA, the sales price is KRW 00,000,000,000,000,000,000,000,000,000,000,000,000 won for the instant real estate, shall be borne by KimA, and the down payment and cash

2) The KimA is a state in which the present whereabouts are unknown (the cancellation of resident registration as it was not actually residing in the resident registration place on October 00, 2000) and the transfer income tax was not paid even though it was transferred after acquiring real estate as indicated below.

Omission of the Table

3) As indicated in the above table, KimD, Plaintiffs, the lectureE, KimF, and LeeB, etc., who acquired each real estate as indicated in the above table, filed each return of capital gains tax for less than “taxable” while re-transfering all the acquired real estate.

4) The defendant's attempt to reduce capital gains tax from the transfer of ownership of the real estate of this case by the plaintiff

For the purpose of the title trust agreement with KimA and the purport that "the title trustee entered into a title trust agreement with KimA and completed the registration of ownership transfer of the instant real estate in the name of KimA, a title trustee (No. 00)", but

00 District Prosecutors' Office has transferred from the plaintiff to KimA the ownership of the real estate in this case.

A disposition was taken to the effect that the title trust was made only by sale, but it is not sufficient evidence to prove that the title trust was made.

5) Around 200.00.00, the Plaintiff deposited KRW 00,000 in the Plaintiff’s 00 branch account in the name of KimA, and around October 00, 2000, the Plaintiff deposited KRW 00,000 in the Plaintiff’s 00 branch account in the name of KimA.

6) Around October 00, 200, B transferred 1/2 shares of the instant real estate to G and Kim H (each of 1/4 shares), respectively, and on October 00, 2000, B reported the acquisition value of 1/2 shares of the instant real estate as KRW 00,000 and KRW 00,000,000 and KRW 1/2 shares of the instant real estate.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 5, 6, 7, 9, Eul evidence Nos. 1, 2, 3 and 5, and the purport of the whole pleadings

D. Determination

1) In the case of an appeal seeking the revocation of an administrative disposition by asserting the illegality of such disposition, that appeal

The administrative agency that asserts that a disposition was lawful has the burden of proving the legitimate grounds (see, e.g., Supreme Court Decision 84Nu515, Jan. 22, 1985). The burden of proving the legality of the disposition lies in the taxation authority, and the fact that the taxable income exists and the income is attributed to the pertinent taxable period ought to be proved by the taxation authority (see, e.g., Supreme Court Decision 98Du1826, Feb. 25, 2000).

2) In light of the relevant legal principles, we examine the instant case’s evidence, and examine each of the aforementioned evidence.

In full view of the overall purport of the pleadings, the following circumstances, i.e., ① the Plaintiff acquired the instant real estate through an auction on or around October 00, 2000, and only seven months thereafter, the Plaintiff acquired the instant real estate at KRW 30,000,000, not exceeding seven months thereafter; and

In light of the fact that it is difficult for the Plaintiff to acquire the real estate of this case, ② the Plaintiff transferred the real estate of this case to 00,000 won in cash on October 00, 200 + KRW 00,000 + KRW 00,0000 + KRW 000,000 + KRW 0000 + KRW 0000 + KRW 000,000). However, there is no evidence to prove that the Plaintiff acquired the real estate of this case to 00,000 won (= KRW 00,000). ③ The Defendant transferred the real estate of this case to 1,000,000,000 won to 1,000,0000 won, and there is no other evidence to prove that the Plaintiff acquired the real estate of this case from 00,000,000 won by means of exchange between 0,000 won and 1,000,000 won.

E. Sub-committee

Therefore, the instant disposition, based on the premise that the transfer value of the instant real estate is KRW 00,00,000, is unlawful without examining further.

3. Conclusion

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

[Attachment]

public official law, order of law,

/ Income Tax Act

Article 88 (Definitions)

The terms used in this Chapter shall be defined as follows:

1. 양도 란 자산에 대한 등기 또는 등록과 관계없이 매도, 교환, 법인에 대한 현물출자 등을 통하여 그 자산을 유상(����)으로 사실상 이전하는 것을 말한다. 이 경우 대통령령으로 정하는 부담부증여(����������)의 채무액에 해당하는 부분은 양도로 보며, 다음 각 목의 어느 하나에 해당하는 경우에는 양도로 보지 아니한다.

가. 「도시개발법」이나 그 밖의 법률에 따른 환지처분으로 지목 또는 지번이 변경되거나 보류지(������)로 충당되는 경우

(b) Where land is exchanged in accordance with the methods and procedures prescribed by Presidential Decree, such as land partitioning under Article 79 of the Act on the Establishment, Management, etc. of Spatial Data to change the boundary of land;

2. The term "stocks, etc." means stocks or investment shares, including preemptive rights and securities depository receipts prescribed by Presidential Decree;

3. The term "stock-listed corporation" means a stock-listed corporation under Article 9 (15) 3 of the Financial Investment Services and Capital Markets Act;

4. The term "unlisted corporation" means a corporation that is not a stock-listed corporation under subparagraph 3;

5. The term "actual transaction value" means the value actually traded by a transferor and a transferee at the time of transfer or acquisition of assets, which is money in a relationship of compensation for the transfer or acquisition of relevant assets and other property values;

Article 92 (Calculation of Tax Base of Transfer Income)

(1) The tax base of capital gains of a resident (hereinafter referred to as "tax base of capital gains") shall be calculated separately from the tax base of global income and retirement income.

(2) The tax base of capital gains shall be the amount obtained by making the basic deduction of capital gains pursuant to Article 103 from the amount of capital gains calculated pursuant to Articles 94 through 99, 99-2, 10 through 102 and 118.

Article 95 (Transfer Income Amount)

(1) The amount of capital gains shall be the amount calculated by deducting the special deduction for long-term holding from the amount (hereinafter referred to as "transfer marginal profits") obtained by deducting necessary expenses pursuant to Article 97 from the total amount of capital gains pursuant to Article 94 (hereinafter referred to as "transfer

Article 96 (Transfer Price)

(1) The transfer value of assets under the subparagraphs of Article 94 (1) shall be based on the actual transaction value between the transferor and transferee at the time of transfer of such assets.

【National Tax Basic Act

Article 14 (Real Taxation)

① 과세의 대상이 되는 소득, 수익, 재산, 행위 또는 거래의 귀속이 명의(����)일 뿐이고 사실상귀속되는 자가 따로 있을 때에는 사실상 귀속되는 자를 납세의무자로 하여 세법을 적용한다.

(2) The provisions pertaining to the calculation of tax base in tax-related Acts shall apply to the actual income, profit, property, act or transaction, regardless of its title or form.

(3) Where it is recognized that benefits provided for in this Act or other tax-related Acts are obtained unfairly by means of indirect means via a third party, or through two or more acts or transactions, this Act or other tax-related Acts shall apply, deeming that the relevant party has made a direct transaction or has engaged in a single act or transaction consecutively in accordance with the economic substance thereof.