Exclusion from the application of conversion acquisition value as conversion acquisition value is confirmed.

Since the land in this case constitutes a case where the actual transaction price can be confirmed at the time of acquisition by books or other documentary evidence, the conversion price cannot be applied.

Article 97 of the former Income Tax Act shall be calculated as necessary expenses

2015Guhap251 Revocation of Disposition of Imposing capital gains tax

AA and 1

Defendant, (P) Appellants

The Director of the Z Tax Office

on 18, 2015

on January 23, 2015

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 61,712,230 on Plaintiff A on June 1, 2014 and imposition of KRW 20,270,892 on KRW 2013 on Plaintiff BB, respectively, shall be revoked.

1. Details of the disposition;

"가. 원고들은 부부지간으로，1996. 7. 5. XX중공업 주식회사(이하소외 회사1라고 한다)로부터 QQ W구 EE동 647-4 대 975.7㎡(이하이 사건 토지'라고 한다)중 원고 AAA이 731.7nf，원고 BBB이 244너를 각 매수하여 이에 대한 소유권이전등기 를 마쳤다.",나. 원고들은 이 사건 토지 위에 건물을 신축하여 1997. 1. 27. 위 건물에 대한 각 1/2 지분에 관하여 소유권보존등기를 마친 후，2013. 5. 9. 주식회사 MMM마트에게 이 사건 토지 및 건물을 62억 원에 매도하였고, 주식회사 MMM마트는 2013. 8. 5. 이 사건 토지 및 건물에 대한 소유권이전등기를 마쳤다.

C. On October 31, 2013, when filing a scheduled return of capital gains tax on the instant land and building with the Defendant, the transfer value is KRW 6.2 billion, which is the actual transaction value, and the acquisition value is KRW 2,103,474,90, which is the conversion value, considering the case where the actual transaction cannot be confirmed, and the transfer income tax calculated according thereto is divided according to the Plaintiffs’ respective shares, and Plaintiff AA paid capital gains tax of KRW 729,580,570, and Plaintiff BB paid capital gains tax of KRW 302,083,40, respectively.

D. The Defendant conducted a field investigation on the Plaintiffs’ capital gains tax from March 10, 2014 to March 28, 2014, and confirmed that the actual transaction price of the instant land was KRW 431,384,680.

On April 2, 2014, Plaintiff AB notified Plaintiff AB that capital gains tax of KRW 61,712,230 and capital gains tax of KRW 20,507,890 will be additionally imposed.

E. On April 15, 2014, the Plaintiffs filed a request for each pre-assessment review with the Defendant on May 22, 2014, but the Defendant decided on May 22, 2014 that the Plaintiffs’ claims were groundless, and on June 1, 2014, issued a disposition imposing capital gains tax of KRW 61,712,230 and KRW 20,270,892 to Plaintiff AB in accordance with the aforementioned notice of scheduled taxation (hereinafter “instant disposition”).

F. On August 18, 2014, the Plaintiffs were dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal, and were dismissed by the Tax Tribunal on November 24, 2014.

2. The whole purport of the pleadings and records in each of the facts without dispute over recognition, evidence 1 through 5, evidence 8 through 12, and evidence 2 (including each number);

A. The plaintiff's assertion

With respect to the instant land, there is no accurate evidence of the purchase price paid to the non-party company. Although various construction costs and incidental expenses are input in addition to the purchase price, but there is no evidentiary document, it is impossible to confirm the acquisition price of the instant land because it falls under the case where the actual transaction price cannot be confirmed, and thus, it is unclear that the Defendant applied the conversion price rather than the actual transaction price, and it is unlawful to regard the tax base at the time of the return and payment of acquisition tax, as the actual transaction price, KRW 431,384,680, which is the aggregate amount of the acquisition tax, and the acquisition

B. Relevant statutes

It is the same as the entry of the "attached Acts and subordinate statutes".

(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 required for the acquisition of assets. If the actual transaction value at the time of acquisition cannot be confirmed, it shall be the transaction example, appraisal value or conversion value prescribed by the Presidential Decree. Article 114 of the former Income Tax Act provides that the head of the district tax office having jurisdiction over the place of tax payment shall correct the transfer income tax base and the tax amount in cases where there are omissions or errors in the return of transfer income tax, and the acquisition value shall be based on the actual transaction value. If it is impossible to recognize or confirm the actual transaction value at the time of the acquisition of the assets due to account books or other documentary evidence for reasons prescribed by the Presidential Decree, it shall be determined or corrected by the Presidential Decree that the other party can not easily prove that the tax base at issue is 20.

2) 갑 제6호증, 을 제4호증의 각 기재에 의하면, 원고들이 부동산 임대사업과 관련 하여 종합소득세 신고를 하면서 작성한 2012년 재무상태표에 이 사건 토지의 가액을 431,384,680원으로 기재한 사실, 소외 회사가 QQQ(원고 AAA의 개명전 이름이다) 에게 이 사건 토지 매매와 관련하여 위임한 사항을 보면 이 사건 토지의 대금을 평당 1,480,000원으로 할 것을 정하고 있는 사실, 울산광역시 동구청장이 회신한 이 사건 토 지에 대한 취득세 과세표준자료 회신에 이 사건 토지의 1996. 7.분 취득세 과세표준액 이 407,736,000원이고，이에 따른 취득세가 8,970,190, 등록세가 14,678,490원으로 기재 되어 있는 사실을 인정할 수 있다.

In addition to the purport of the whole pleading in the above facts, the following circumstances can be comprehensively taken into account, and the land in this case can be confirmed at the time of acquisition by books and other documentary evidence.

① Since the purchase of the instant land by the Plaintiffs, the value of the instant land in the statement of financial position shall be stated as KRW 431,384,680 on December 31, 201 and December 31, 2012, and the Plaintiffs do not seem to have recorded the false land value on the statement of financial position for more than ten years.

② Nonparty Company: (a) delegated Plaintiff AA with the sale of at least KRW 1.48,00,00 per square meter, the 647 site located in Ulsan-dong, Ulsan-gu, Seoul-dong, Seoul-dong, including the instant land; and (b) multiplied the price per square meter on the instant land, the Plaintiffs had almost a value similar to the 431,384,680 won stated in the statement of financial position; and (c) the Plaintiff had paid the said amount as the purchase price for the instant land.

③ One of the following facts alleged by the Plaintiffs that the actual transaction value of the instant land cannot be confirmed, one of the following is that the various construction costs and incidental expenses were included in the instant land, but there is no evidentiary document verifying such amount. As such, the various construction costs and incidental expenses claimed by the Plaintiffs refer to the capital expenditure separate from the acquisition value, which is one of the necessary expenses to be deducted when calculating the transfer value, and thus, the acquisition value is not determined based on the conversion value, not the actual transaction value, on the ground that the capital expenditure is not verified.

Therefore, the Defendant’s disposition that calculated the transfer value on the premise that the actual transaction price at the time of acquisition of the instant land is KRW 431,384,680 is lawful.

3. Conclusion

Therefore, the plaintiffs' claims are dismissed as it is without merit. It is so decided as per Disposition.

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