Incheon District Court-2014-Gu Group-165 ( October 27, 2015)

Whether the sales price of the approval document of this case constitutes a sales case

Since it is reasonable to deem that each of the approval seals contracts of this case was prepared differently from the actual transaction, the disposition of this case was made by applying 4,083.7 won per square meter, which is the sale price under each of the approval seals contracts of this case, as the sale price.

Article 23 of the Income Tax Act

Seoul High Court 2015Nu35149 Revocation of Disposition to Revoke Capital Gains Tax

AA

BB Director of the Tax Office

December 18, 2015

.22 2016

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of correcting capital gains tax of KRW 286,779,520 (including additional tax) for the Plaintiff on May 20, 2013 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

1. Details of the disposition;

A. On February 3, 1989, the Plaintiff acquired and owned 1,652.5/124,595/124,00 of shares of co-owners (hereinafter referred to as "share in the land of this case") among the co-owners' share of 1,652.5/124,59 (hereinafter referred to as "share in this case") and owned O-dong O-dong forest 124,595 square meters (the share in the land of this case was divided into 66,678 square meters and 5,588 square meters on September 6, 2007; hereinafter referred to as "the land of this case"). On September 28, 2007 and November 14, 2007, the Plaintiff transferred the share in this case toCC and D 300,000,000 won in total (the share in O-dong 267,000,000 won and shares in O-dong 33300,0000 won (hereinafter referred to referred to as "the case").

B. When the Plaintiff reported the transfer income tax on the transfer of this case, the transfer value shall be KRW 300,000,000, which is the actual transaction value, and the acquisition value shall be KRW 297,500,000, which is the conversion value, was declared as non-existent.

C. The Commissioner of the National Tax Service confirmed the purchase price of F and GG from February 1989 to March 1, 1989, among 10 persons who acquired shares from the former owner EE, and notified the Defendant of the acquisition price calculated and taxed as a transaction example. On May 20, 2013, the Defendant issued a correction and imposition (including penalty tax of KRW 17,445,071, additional tax of KRW 94,83,743, and additional tax of KRW 94,743, and additional tax of KRW 286,779,520, which reverts to the Plaintiff in 2007 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal, but was dismissed on December 4, 2013.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Principal capital gains tax portion

The sales contract in the name of FF and GG, which the Defendant used as the basis for business example, is merely a so-called "sale contract" in the name of F and GG. The sales price stated in each of the above sales contract does not exceed 1/10 of the officially assessed individual land price as of January 1, 1990, and the land price in this case was less than 1/10 of the officially assessed individual land price as of February 3, 1989, because the Plaintiff acquired real estate speculation in the instant land at the time of February 3, 1989, and the sales price sharply increased in the course of the pre-sale in the non-registered status. In light of the practice of preparing the seal of approval at the time of this case, each of the above sales contract cannot be deemed an actual

(2) Additional tax portion

Even if the principal portion of the disposition of this case is lawful, there is no circumstance or possibility to deem that the Plaintiff was aware of the existence of each of the instant approval forms. Therefore, it is difficult to expect the Plaintiff to report the transfer income tax calculated by calculating the transfer income tax of the instant land shares by making the sales price of each of the instant approval forms a transaction example. Ultimately, there was justifiable cause not attributable to the Plaintiff’s failure to report and pay the transfer income

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Relevant legal principles

Unless there are special circumstances, the stamp contract prepared by the parties to the transaction and approved by the head of the Si/Gun, etc. shall be presumed to have been prepared in accordance with the sales contract between the parties, and the fact that the contract was prepared differently from the actual system shall be proved by the claimant (see Supreme Court Decision 93Nu2353, Apr. 9, 1993).

(2) Facts of recognition

① 이 사건 토지의 소유자인 EE와 GG 사이에 이 사건 토지 중 일부 지분에 관하여 1988. 9. 10.자 매매계약서가 작성되고, EE와 FF 사이에 이 사건 토지 중 일부 지분에 관하여 1988. 9. 10.자 매매계약서가 작성되었다(이하 위 각 매매계약서를 '이 사건 각 검인계약서'라 한다). 위 각 검인계약서는 등기신청을 위하여 PP 사법서사 사무실의 직원 QQ에 의하여 작성되었고, 위 각 검인계약서에 기초하여 1989. 3. 8. GG 명의의 지분이전등기가 마쳐지고, 1989. 2. 3. FF 명의의 지분이전등기가 마쳐졌다. 한편, 원고는 1989. 2. 3. HH 명의로 이 사건 토지 지분에 관하여 지분이전등기를 마침으로써 이 사건 토지 지분을 취득하였는데 등기부상 등기원인일은 1988. 9. 10.로 기재되어 있다.

② The sales price of each of the instant approval seal contracts was calculated as KRW 4,083.7 per square meter. Meanwhile, on the other hand, on January 1, 1989, the land class publicly notified as the land of this case was 110 per square meter and the grade was 964 won per square meter.

③ The officially assessed individual land price of the instant land did not exist at the time the Plaintiff acquired the instant land shares, and was publicly announced since 1990, and the officially assessed individual land price of the instant land as of January 1, 1990 was KRW 45,000 per square meter.

④ QQ은 이 법원 2014누00000 양도소득세경정부과처분취소 사건에서 증인으로 출석한 후 '이 사건 각 검인계약서는 부동산등기를 하고 취・등록세를 납부하기위해서 등기서류로 작성한 것이다. 위 각 검인계약서의 매매대금은 매매계약당사자들이 불러 준 대로 기재한 것으로 기억하고 있다. 당시에는 취・등록세 납부를 위한 매매계약서에 매매대금을 내무부 고시 등급가액으로 적는 것이 통상적이었던 것으로 기억한다.'라고 증언하였다.

⑤ Around 1988, an OO-dong where the instant land is located, the standard market price, which is the basis for calculating the transfer value under the Income Tax Act at the time of January 15, 198, was designated as a specific area computed by applying a specific percentage to the standard market price under the Local Tax Act (the value of land, etc.) in determining the standard market price, which is the basis for calculating the transfer value under the Income Tax Act at the time of January 15, 198 (the rate of 6.43 times was applied to the land, the publicly notified land of which is the 1

④ Meanwhile, on November 9, 2007, GG voluntarily reported and paid the high-amount capital gains tax exceeding 170 million won by making the purchase price under the above seal of approval agreement as the acquisition price.

7) According to the RR appraisal corporation’s appraisal results in the case of revocation of disposition of revocation of imposition of capital gains tax of 2014Nu0000, the market price of the instant land as of September 10, 1988 is 14,000 won per square meter.

[Reasons for Recognition] Unsatisfy, Gap evidence 6 to 18, 31, 37 (including Serials), Eul evidence 5, and the purport of the whole pleadings

(3) Determination

In full view of the following circumstances and the facts revealed in the argument, it is reasonable to view that part of the share of the instant land was prepared differently from the actual purchase price under each of the instant seal of approval agreement between FF and GG, which was acquired from EE. Therefore, the instant disposition was unlawful by applying 4,083.7 won per square meter, which is the sales price under each of the instant seal of approval agreement, as the sale price.

① According to the Local Tax Act and subordinate statutes enforced at the time of the Plaintiff’s acquisition of shares in the instant land, the tax base of acquisition tax is the value at the time of acquisition, but when there is no indication of an acquirer’s reported or reported value or when the reported value is lower than the publicly notified land value, the value of the land publicly notified as of January 1, 1989 is 967 won per square meter, and thus, the purchase price indicated in each of the instant approval form contract is higher than the publicly notified land value. However, from the buyer’s standpoint, the purchase price indicated in each of the approval forms the tax base of acquisition tax; however, from the seller’s standpoint, the transfer price is calculated based on the standard market price, but it is exceptionally calculated based on the actual transaction price, and the standard market price of the instant land is calculated by multiplying the price of the instant land by the purchase price of KRW 9634,636,965 x 964,64,000,000,000.

In particular, in light of the fact that the standard market price in the calculation of capital gains tax as above is to overcome the practice of reporting at a price significantly lower than the actual market price by lowering the transfer price and securing tax revenue, the standard market price is ordinarily lower than the actual market price, but it is likely that the standard market price would normally be lower than the actual market price. In a case where transfer margin is to be calculated based on the standard market price, the tax amount calculated based on the principle of no taxation without law or prohibition against excessive taxation under the Constitution may not exceed the scope of the transfer margin based on the actual market price (see, e.g., Supreme Court Decision 2005Du12640, Jul. 12, 2007).

② QQ은 '이 사건 각 검인계약서는 부동산등기를 하고 취・등록세를 납부하기 위해서 등기서류로 작성된 것이다. 위 각 검인계약서의 매매대금은 매매계약당사자들이 불러 준 대로 기재한 것으로 기억하고 있다.'고 진술하고 있어, 이 사건 각 검인계약서는 당사자들이 작성한 실제 계약서를 토대로 작성된 것이 아니라 법무사 사무소에서 새로이 등기를 위하여 작성된 것으로 보이므로 그 매매대금 역시 취・등록세 납부 등을 위하여 새로이 정해졌을 개연성이 있다.

③ In addition, according to the appraisal result of the RR appraisal corporation at the trial, the market price of the instant land at the time of September 10, 1988 is much higher than the purchase price stated in each of the instant approval seal contracts, even in that the market price of the instant land at the time of September 10, 198 is 14,000 won per square meter, each of the instant approval seal contracts was prepared differently from the actual transaction

3. Conclusion

Therefore, without examining the remaining arguments of the plaintiff, the plaintiff's claim is accepted for reasons, and the judgment of the court of first instance is unfair with different conclusions, and it is so decided as per Disposition with the cancellation of the judgment of the court of first instance and the cancellation of the disposition of this case.