Cho High Court Decision 2010Du0423 (Law No. 29, 2010)

be recognized as having received money from a purchaser under the pretext of capital gains tax, etc.

In full view of the fact that the purchaser agreed to bear part of the capital gains tax at the time of the sale and purchase of real estate, and the fact that the purchaser prepared and prepared a confirmation document that received the outstanding amount from the purchaser, the key amount shall be paid by the purchaser.

Article 96 of the Income Tax Act

2010Guhap3402 Revocation of Disposition of Imposing capital gains tax, etc.

leAA

Head of Jinju Tax Office

August 11, 2011

September 1, 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 60,343,940 against the Plaintiff on August 14, 2009 shall be revoked.

1. Details of the disposition;

A. On April 17, 2008, the Plaintiff sold to the BBBB (hereinafter “BBB”) 32,300-00 O, 00-00 m2, the same 000-00 m2, and 744 m2,296 m2,296 m2, and O200-0 m2,296 m2, and 210 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2,000 m2 (hereinafter “the instant real property”).

B. On April 18, 2008, the Plaintiff filed a return on the tax base of capital gains tax with the transfer value of KRW 13,780,380,380,000 for the Defendant. On April 30, 200, the Plaintiff paid the total of KRW 563,024,740 for capital gains tax and KRW 56,302,470 for residents’ tax on the 30th of the same month (= KRW 563,024,740 + + KRW 56,302,470).

C. After July 11, 2008, the Plaintiff filed a return on the tax base of capital gains tax again with the Defendant as KRW 16,779,625,000, and paid the remainder after deducting the transfer value of the instant real estate from KRW 619,327,210 on July 14, 2008, the Plaintiff additionally paid KRW 437,978,760 (=398,162,510 + + KRW 39,816,250) of capital gains tax and KRW 39,816,250.

D. However, on August 14, 2009, the Defendant issued a disposition imposing capital gains tax of KRW 60,343,940 on the Plaintiff (hereinafter “instant disposition”) on the ground that not only the above KRW 16,779,625,00, but also the Plaintiff should include KRW 119,327,210 under the name of the Plaintiff, such as capital gains tax paid from BBBB.

E. On October 21, 2009, the Plaintiff filed an appeal with the Intellectual Property Tribunal on January 21, 2010 on the instant disposition, but the said claim was dismissed on June 29, 2010.

[Ground of recognition] Facts without dispute, Gap 1, 3, 4, 5, 7 evidence, Eul 1, the purport of the whole pleadings

2. Whether the instant disposition is minor;

A. The plaintiff's assertion

The instant disposition is unlawful as seen below, and thus ought to be revoked.

(1) The Plaintiff did not receive the instant key amount from the BBBB, and prepared a confirmation document (Evidence 12) that the vice president of BBB BB’s receipt of the instant key amount by accepting hH’s hh’s h’s h’s h’s h’s h’s h to resolve the dispute with the BBB, and does not actually belong to the Plaintiff. Nevertheless, the Defendant’s imposition of the instant key amount by adding the instant key amount to the transfer value of the instant real estate is in violation of the underlying taxation principle and the principle of substantial taxation.

(2) In investigating the Plaintiff, the investigating official violated the taxpayer’s rights under the Framework Act on National Taxes and violated the rules on investigating public officials’ behavior.

(b) relevant statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Agreement on the sales contract and payment of capital gains tax of the instant real estate

(A) The main contents of the sales contract between the Plaintiff and the BBBB with respect to the instant real property are as follows.

(B) On April 17, 2008, BBB made an undertaking to pay the additional capital gains tax to the Plaintiff on April 17, 2008, if a separate capital gains tax, other than the capital gains tax, imposed on the Plaintiff.

(2) Withdrawal, etc. of the key amount of the instant case

(A) BBBB withdrawn on April 18, 2008 the sum of KRW 104,287,00,000, and KRW 15,040,210, and KRW 119,327,210,00 (==104,287,000 + KRW 15,040,000 + KRW 15,040,210) from the financial account in the name of the Korea Exchange Bank in the name of the BBBB, as two checks (hereinafter “the instant check”), and written in the column of computerized data.

(B) On April 18, 2008, the check of this case was presented by Park G, Park F, which is the seat of the SeoF, who arranged for the transaction of the real estate of this case, and was withdrawn in cash 19,327,210 won and 10 million won of cashier’s checks.

(C) On September 16, 2010, the Director of the Advancement Branch Office of the Korea Exchange Bank prepared a confirmation statement that "BBB requested that the recipient indicate the name of the recipient of the land compensation at the time of withdrawal for the payment of the land compensation."

(3) dispute and settlement between the Plaintiff and the BBBBB

(A) On June 23, 2008, the Plaintiff sent to BBB a written confirmation letter demanding that the sum of capital gains tax and resident tax of 119,327,210 won be paid to BBB. On June 27, 2008, the Plaintiff finally confirmed that the tax (transfer income tax and resident tax) was settled by receiving KRW 119,327,210 from BBBB on April 18, 2008, and that the tax (transfer income tax and resident tax) was settled by receiving KRW 119,327,210 from E., and that the trees and superficies in the contract site are recognized as ownership of E.g., written confirmation document.

(B) On July 22, 2008, the Plaintiff filed a lawsuit seeking payment of KRW 119,327,210 (= KRW 619,327,210 - KRW 500,000) of capital gains tax and resident tax in excess of the amount to be paid by the Plaintiff according to the instant sales contract, etc. among the total of KRW 619,327,210 of capital gains tax and resident tax first paid by the Plaintiff (i.e., KRW 619,327,210 - KRW 500,000) and the total of KRW 437,968,767 and KRW 557,305,970 (=119,327,210 + KRW 437,978,760) of capital gains tax and resident tax paid by the Plaintiff.

(C) On December 4, 2008, the Plaintiff and BBBB agreed that the Plaintiff withdraw the above lawsuit, the BBBB withdraw all the existing criminal complaints filed against the Plaintiff, and confirm that there is no credit and debt relationship between the Plaintiff and the Plaintiff.

(4) The details of the Busan National Tax Service’s investigation on the transfer value of the instant real estate

“(a) The verification of the HH’s personnel working for BBBBB is indicated as follows: “BBBB’s total amount of KRW 19,372,540,210,00,000,000,000 for transplant and compensation for land and trees, etc., KRW 18,79,500,000, the amount equivalent to the interest on intermediate payment and remainder, and KRW 119,327,210,00,000, such as capital gains tax.” (b) The written answer of May 19, 2009 against the Plaintiff was to bear KRW 500,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,00,000,00,00.

(C) On November 4, 2009, FF’s confirmation letter, “A” arranged for the instant real estate transaction between the Plaintiff and BBBBBBB, and, in the event that a apA is sexually terminated, the principal’s amount of KRW 500 million was paid at the expense. On April 18, 2008, the highest HBBBBB’s first arrival at the principal’s office, and then transferred the 119,327,210 won check to the principal, and the principal demanded the leA to pay KRW 119,327,210 as a check on the day of check, and the leapA stated that “A is able to pay for the checks received at the expense of the principal on the day of check.”

(5) Contents of the testimony of the witness Kim II, SF

(A) Witness Kim II: (a) prepared a final investigation report (No. 8) and concluded that BBBBB, the purchaser of the instant real estate, bears the key amount of the instant case. During the course of the tax investigation, the Plaintiff, who is the taxpayer, has given sufficient opportunity to vindicate himself/herself to the investigating official, and has given sufficient opportunity for the taxpayer to vindicate himself/herself. After the completion of the tax investigation, the Plaintiff specifically explained the results of the investigation to the Plaintiff before receiving the tax investigation on the spot.

(B) Witness FF: (a) on April 18, 2009, the Plaintiff agreed that the instant real estate contract would be KRW 500 million upon the formation of the contract. On the part of the witness office, the Plaintiff received the instant check from BBBBBB from the Plaintiff on the part of the intermediary fee. BBBBBBBBB in the process of making payment in cash due to the creation of money and changing the check in cash at the foreign exchange bank in order to make payment. Since the Plaintiff made an oral promise, he signed by Park GG in the course of making payment in cash. As the Plaintiff made an oral promise, he would not give money, and thereafter be directly treated with BBBBBBBBBB..

[Ground of Recognition] Facts without dispute, Gap 1, 2, 7, 9, 11 evidence, Eul 8 through 12, 14 through 18 evidence, each of the orders to submit financial transaction information to the President of the Korea Exchange Bank in this Court, witness Kim II, witness Kim F's testimony, and the purport of the whole pleadings.

D. Determination

(1) Whether the receipt of the key amount of the instant case is attributed

In light of the following circumstances: ① the Plaintiff agreed to bear BB’s relevant expenses, including capital gains tax exceeding 50,000,000 won, the purchaser of the instant real estate at the time of the purchase and sale of the instant real estate; and ② the Plaintiff’s allegation that the amount of the instant real estate was less than the above 50,000,000 won out of the total amount of capital gains tax and resident tax paid by the Plaintiff; ② the Plaintiff’s written answer of May 19, 2009, the Plaintiff was not subject to additional refund of KRW 10,000,000 from the Plaintiff’s 8B, and the Plaintiff’s submission of the instant financial transaction information was not subject to the 1B’s submission of written confirmation from the Defendant and the 2000,000,000,000 won.

(2) Whether the rules for investigating public officials have violated

Only the evidence submitted by the Plaintiff cannot be deemed to have violated the rules of conduct for investigating public officials, and there is no other evidence to acknowledge this, the Plaintiff’s assertion on this part is without merit.

(3) Therefore, the instant disposition made by the Defendant on the same premise is lawful.

3. Conclusion

If so, the plaintiff's claim is without merit, and it is dismissed.