Review Transfer 2009-0211 (Law No. 24, 2009)

The legitimacy of the assertion that the transfer value was over-paid in order to obtain bank loans

The Plaintiff’s assertion that the transferee prepared a double contract in order to enable the bank to obtain a large amount of secured loan with respect to the taxation by underreporting the transfer value, but there is no objective data to acknowledge it, and that the real estate register also contains the same amount, is without merit.

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 KRW 50,873,740 against the Plaintiff on May 1, 2009 is revoked.

1. Details of the disposition;

A. On June 18, 2001, the Plaintiff sold 172,100,000 won and completed the registration of ownership transfer on February 10, 2004 with respect to the apartment of this case on September 17, 2007, Jung-gu, Seoul. KimABCpp loan No. 8102, 1804 (hereinafter "the apartment of this case"), and completed the registration of ownership transfer on September 6, 2007.

B. On August 31, 2007, the Plaintiff acquired and owned the instant apartment, a newly-built house, to the Defendant, and sold the amount of KRW 390,000,000 to KimA on August 31, 2007, which was subject to the application of the special taxation for capital gains tax on the acquisition of newly-built house, the Plaintiff made a preliminary return on tax base of capital gains tax to the effect that KRW 49,706,496 of capital gains tax is fully reduced

Then, on May 31, 2008, the Plaintiff, a non-resident holding one household Lone Housing, sold the instant apartment in KRW 390,000,00 to KimA on August 31, 2007, and the special taxation for transfer income tax on the acquisition of newly-built house is not applicable. Accordingly, the Plaintiff filed a final return on tax base of transfer income tax with the content that the transfer income tax from the sale of the instant apartment is KRW 49,56,968.

C. On May 1, 2009, the Defendant: (a) deemed that the Plaintiff was a non-resident with two houses for one household at the time of selling the instant apartment; (b) deemed that the Plaintiff was a non-resident with two houses at the time of selling the instant apartment, and excluded the application of the special long-term holding deduction; (c) rendered the instant disposition imposing capital gains tax (including additional tax) for 2007, 507, 873,740 won (the amount less than 50,173,220 won after subtracting the total determined tax amount from the total tax amount of KRW 101,046,969, which was paid at KRW 50,173,220) upon the sale of the instant apartment.

[Ground of recognition] Each entry of Gap evidence Nos. 1, 4, 8, 10, Eul evidence Nos. 1, 2, 10, 17 (including paper numbers), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, while selling the apartment in this case, set the price of the apartment in this case at KRW 295,00,00,000. In order to enable KimA to obtain loans from the financial institution, only the Plaintiff prepared a sales contract with the content of KRW 390,000,000, which is higher than the actual amount of the purchase price, and made it available for the loan, etc. Accordingly, with respect to KRW 150,000,000 out of KRW 295,000,000, the Plaintiff’s disposal of the apartment in this case was to substitute for the payment of KRW 145,000,000 by succeeding to the obligation to refund the lease deposit amount of KRW 150,000 for the lessee in this case, the Plaintiff’s disposal of the apartment in this case was unlawful by regarding the Plaintiff’s payment of KRW 145,50,000,00 for the remainder of KRW 145,000,00 for the payment of the management fee and public imposts.

B. Determination

Article 10, No. 11, No. 5, 11, and 17 of the Plaintiff’s certificate of 00 (including the serial number) were integrated into the following circumstances, i.e., the Plaintiff reported the actual transfer value of the apartment complex at KRW 390,000,00, while taking account of the scheduled return and final return of the transfer income tax pursuant to the sale of the apartment complex. The Plaintiff asserted that the head of the certified judicial scrivener’s office had the Plaintiff prepare a false sales contract with KRW 390,000,00 for the loan secured by the apartment complex. However, on October 4, 2007, the Plaintiff did not have any objective evidence to acknowledge the fact that the Plaintiff received 00,000 for the repayment of the loan money at KRW 10,00,000 for the purpose of the repayment of the loan money at KRW 390,000,000 for the repayment of the loan money at KRW 50,000,00 for the repayment of the loan money at KRW 500.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.