The defendant's disposition that calculated the actual transaction price at the time of acquisition by books and other documentary evidence of the other party is legitimate.

Since the actual transaction price at the time of acquisition by the other party's books and other documentary evidence falls under the case where the actual transaction price can be confirmed by the documentary evidence, the plaintiffs' assertion that the acquisition price should be calculated at the conversion price on the premise that the actual transaction price cannot

Article 97 (Calculation of Necessary Expenses in Transfer Income)

2015Gudan53759 Revocation of Disposition of Imposing capital gains tax, etc.

AA and one other

○ Head of tax office

on April 27, 2016

on October 016, 2010

1. All of the plaintiffs' claims are dismissed.

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

On June 1, 2014, the Defendant revoked the imposition of the capital gains tax of ○○○○○○○○○○ upon Plaintiff AA and the imposition of the capital gains tax of 2012 on Plaintiff BB.

1. Details of the disposition;

A. On November 30, 200, the plaintiffs acquired 1/2 shares from CCC in Busan Dongdong-gu △△△dong 】 】 】 261 square meters (hereinafter "the land in this case"). The plaintiffs newly constructed a building of reinforced concrete slab roof 9 floors (hereinafter "the building in this case") on the ground in this case, and completed each registration of initial ownership by Plaintiff AAA 7/10 shares among the building in this case, and Plaintiff BB 3/10 shares of 3/10 shares.

B. On November 20, 2012, the Plaintiffs transferred the instant land and the instant building (hereinafter referred to as “the instant real estate”) to the Defendant on or around December 31, 2012, and subsequently, upon filing a preliminary return of transfer income tax on the instant real estate, the transfer value is the actual transaction value (i.e., the instant land ○○○ + the instant building ○○○○○○○), and the transfer value is the actual transaction value (i.e., the acquisition value is deemed as the case where the actual transaction value cannot be confirmed, and thus, the converted value is the ○○○○○○ (i.e., the instant land ○○○○ + the instant building ○○○○○○○○○○○) (i.e., the Plaintiff Company divided the transfer income tax calculated pursuant to the Plaintiffs’ respective shares, and then Plaintiff AA and Plaintiff B paid transfer income tax on the ○○○○○○○.

C. On June 1, 2014, on the ground that the actual transaction price at the time of acquiring the instant land was confirmed as the actual transaction price at the time of acquiring ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ (including general under-reported additional tax, ○○○○○○○○○○○○○○○, and penalty tax due due due to nonperformance), and Plaintiff BB made a decision and notification to additionally pay the transfer income tax corresponding to the year 2012 (including general under-reported additional tax, ○○○○○○○, and penalty tax due to nonperformance of payment) (hereinafter “instant disposition”).

D. The Plaintiffs appealed and filed an administrative appeal with the Tax Tribunal on June 23, 2014, but was dismissed on March 3, 2015.

[Ground of recognition] Facts without dispute, Gap 1, 4 through 7, Eul 1 and 2 (including provisional numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The plaintiffs did not have experience in the transaction of real estate for commercial use or new construction of the building of this case and entrusted the business to the employees of the brokerage office and the employees of the construction company in relation to the acquisition of the building of this case. At the time, the so-called "contract", which lowers the actual transaction price and the construction cost, was practices, and most of the sales price and the construction cost were paid in cash, and the construction company completed the construction company directly by the plaintiffs due to the locking of the construction of the building of this case, and thus, it is different from the facts in the contract, and it is impossible to confirm the acquisition price of the real estate of this case because it is impossible to confirm the actual transaction price of this case because the acquisition price of the real estate of this case cannot be confirmed by the actual transaction price, and thus, the defendant applied the conversion price which is not the actual transaction price, but the conversion price of the real estate of this case, on the basis of the book value based on the purchase price reported by the former owner of the land of this case and the multi-unit contract prepared by the construction company. Therefore, the disposition of this case was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Article 97 of the former Income Tax Act (amended by Act No. 12169, Jan. 1, 2014; hereinafter “former Income Tax Act”) provides for the acquisition value as one of the necessary expenses to be deducted from the transfer value in calculating transfer income. The acquisition value shall be the actual transaction value for the acquisition of assets. If it is impossible to confirm the actual transaction value at the time of acquisition, it shall be the transaction example, appraisal value, or conversion value as prescribed by the Presidential Decree. Article 114 of the former Income Tax Act provides that where there is any omission or error in the return of transfer income tax, the acquisition value shall be calculated on the basis of the actual transaction value while correcting the transfer income tax base and the tax amount, and where it is impossible to recognize or confirm the actual transaction value at the time of acquisition of the relevant assets by books or other evidentiary documents due to reasons prescribed by the Presidential Decree, the acquisition value may be determined or corrected by making an estimated investigation by the transaction example

Generally, in a lawsuit seeking revocation of a tax imposition disposition, the burden of proving the facts of taxation requirements shall be borne by the imposing authority. However, if it is revealed that the facts of taxation requirements are presumed in light of the empirical rule in the course of a specific lawsuit, the other party cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that fails to meet the taxation requirements, unless it proves that the pertinent facts of taxation are not eligible as the subject of the empirical rule (see, e.g., Supreme Court Decision 2005Du5604, Nov. 15, 20

(2) In full view of the following circumstances, it is reasonable to view that the book value of the instant real estate on the financial statements was prepared by reflecting the actual transaction value of the instant real estate in light of the following circumstances, which can be seen by adding the overall purport of the pleadings to each of the statements in the evidence Nos. 6, 3, and 7.

a. CCC, the former owner of the instant land, reported that it transferred the instant land to ○○○○○○○○ at the time of filing a transfer income tax. The acquisition tax and registration tax of the instant land are ○○○○○○○○○○○○○, and according to the financial statements submitted by the Plaintiffs when filing a global income tax return on the lease business in the instant building. According to the financial statements submitted by the Plaintiffs, the book value of the instant land from 003 to 2011 corresponds to the total amount of acquisition tax and registration tax ○○○○○○○○○○○○ and registration tax reported by the former ○○○○○○○○○.

b. △ General Construction Co., Ltd. submitted to the Defendant an agreement to modify the contract agreement and the construction period made between the Plaintiffs regarding the construction of the instant building with respect to the construction of the instant building. The construction cost under the said agreement and the amendment agreement is indicated as ○○○○○○○○○○ (excluding value added tax). The acquisition tax of the instant building is indicated as ○○○○○○○, and registration tax is indicated as ○○○○○○○○, and according to the balance sheet and the account ledger in 2001, the Plaintiffs paid ○○○○○, ○○○○○○○, and electrical construction cost at the cost of building design. According to the financial statements submitted by the Plaintiffs, according to the financial statements related to the lease business, the book value of the instant building is indicated as ○○○○, from March 203 to December 2005, 2006, 8○○○○○, and ○○○○ from January 2011.

c. The Plaintiffs entered the value of the instant land in the financial statements for at least nine years from the acquisition of the instant real estate to the date of 2011, as KRW 00,00, KRW 00, KRW 00, KRW 00, and KRW 00,000, KRW 00, KRW 00, and KRW 00. The Plaintiffs asserted that it was difficult to prove the actual amount of expenditure, and thus, the Plaintiffs had no choice but to prepare the so-called so-called multi-purpose contract standards for convenience, but it is difficult to see that

(3) The Plaintiffs asserted that the sale and purchase price and construction price are different from the fact in relation to the instant real estate, as well as the sales and sale contract, contract, which the Defendant establishes that financial statements were prepared differently from the fact, and financial transactions related to the payment of the construction price, sales and sale contract, construction contract, and construction contract, are not submitted at all, and the circumstances leading up to the failure to include the actual transaction price in the book are not sufficiently explained. In addition, in calculating transfer margin, the actual transaction price, which is the basis for the calculation of transfer margin, refers to the actual transaction price, not the general market price that reflects the objective exchange value, but the actual transaction price itself or at the time of the transaction (see, e.g., Supreme Court Decision 2015Du43148, Oct. 15, 2015). Even if the standard market price of the instant land and the acquisition price at the time of the instant building, which is higher than the real price at the time of the acquisition thereof, the Plaintiffs’ book value cannot be viewed as the actual transaction price.

(4) Therefore, since the real estate in this case constitutes a case where the actual transaction price at the time of acquisition can be confirmed by books and other documentary evidence, the plaintiffs' assertion that the acquisition price should be calculated based on the conversion price on the premise that the actual transaction price cannot be confirmed by the documentary evidence is without merit.

3. Conclusion

Thus, the plaintiffs' claim is dismissed as it is without merit.