National Tax Service Review and Transfer 2010-0300 ( October 21, 2011)

Since the land is deemed to have been acquired as payment in kind, the value of payment in kind is recognized as acquisition value.

Since it is deemed that the purchaser of the land has lent the purchase fund to the purchaser of the land and acquired the land as payment in kind, the acquisition date of the ownership transfer, etc. shall be the acquisition value of the land and the disposition imposing the transfer

Article 97 of the Income Tax Act

2011Guhap1773 Revocation of Disposition of Imposing capital gains tax

Song XX

The Director of the National Tax Service

March 7, 2012

March 28, 2012

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 372,930,210 to the Plaintiff on August 2, 2010 shall be revoked.

1. Details of the disposition;

A. On October 10, 2005, the Plaintiff transferred to the Korea Land Corporation the purchase price of KRW 1.65,781 square meters of land 4,971 square meters (hereinafter “instant land”) out of 00-0,000,000 and KRW 1.655,7810,000,000, and reported and paid the acquisition price of the instant land to the National Tax Service on February 23, 2005 and the acquisition price of KRW 1.2 billion with the acquisition price of KRW 1.95,99 million.

B. However, on February 24, 2004, the Defendant determined that the Plaintiff acquired the instant land from the MediationA on May 23, 2005 as payment in lieu of the amount of KRW 750 million lent to the pro-Japanese on May 23, 2005, and issued a disposition of imposition of capital gains tax of KRW 372,930,210 on August 2, 2010 by determining the acquisition date of the instant land as KRW 750,000 on February 23, 2005 and the acquisition value as KRW 750,00,000.

C. On October 15, 2010, the Plaintiff appealed to the National Tax Service, but was dismissed on January 21, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5 (including virtual number), Eul evidence Nos. 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff purchased the instant land in KRW 750 million from the OO Housing Construction Co., Ltd. (hereinafter “O Housing Construction”). The time of acquisition is not February 23, 2005 for which the registration of ownership transfer was made under the Plaintiff’s name but February 24, 2004 for which the total purchase price was paid. Accordingly, the transfer income tax rate of 40% should be applied. Thus, the instant disposition based on a different fact should be revoked as unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) On February 24, 2004, Article A prepared a sales contract concerning the instant land (hereinafter referred to as “instant sales contract”) with the representative director for the O Housing Construction, KimB, and the main contents are as follows.

2) On February 24, 2004, the Plaintiff paid the total amount of KRW 750 million borrowed from those who own funds or money borrowed from the Fund or money in his possession.

3) At the time of the preparation of the instant sales contract, the instant land was trusted to the Korea Land Trust Co., Ltd., but the OO Housing acquired the ownership of the instant land on March 2, 2004, and on May 3, 2004, trusted the instant land to the Korea Assets Trust Co., Ltd. on the trust property, but recovered the ownership of the instant land on February 22, 2005, and completed the registration of ownership transfer to the Plaintiff on February 23, 2005.

4) Until February 23, 2005, the O Housing Construction did not have paid all interest, etc. to the Plaintiff or ChoA during the period from February 24, 2004 to February 23, 2005, and there was no fact that the Plaintiff or ChoA demanded the payment of loans, interest, etc. with respect to the O Housing Construction.

5) In relation to the disposition imposing the transfer tax of this case, the Plaintiff stated to the National Tax Service that the Plaintiff lent the key amount to the neighboring people upon a long-standing request of the Mediation and Support Agency for Job Friendly friendliness at the time of receiving a request for examination.

[Ground of Recognition] Facts without dispute, Gap evidence 2, 3, Eul evidence 3 and 4, witness KimCC, and Article

The purpose of each of the testimony and arguments of AA, as a whole.

D. Determination

In light of the fact that KimB, at the time of the preparation of the sales contract of this case, appears in this court as a witness and made it clear that the other party to the contract would have been a party to the contract, but it is difficult to view that the sales contract of this case was made as a collateral pursuant to the monetary loan contract, such as the possibility of change of circumstances after the conclusion of the sales contract, the seller's obligation to transfer ownership, etc. as a special agreement, etc. It is difficult to view that the purchaser under the sales contract of this case was made as a collateral pursuant to the monetary loan contract, not the plaintiff, and there is no statement that ChoB would enter into the sales contract of this case on behalf of the plaintiff, and there is no statement that the plaintiff himself would have lent the purchase price to ChoB, and that it was legitimate to impose capital gains tax on February 23, 2005. The plaintiff's initial purchase of the land of this case from OB was 200 million won for the plaintiff's purchase of the land of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.