Early High Court Decision 201J 1360 (O6.08)

The transaction value under the sales contract submitted by the transferee is recognized as the actual transaction value.

In light of the fact that most of the sales proceeds under a sales contract submitted by a transferee are proved to have been paid, the transaction value under the sales contract submitted by the transferee is recognized as an actual transaction amount in light of the following: (a) the seal impression of the transferee is not affixed to the sales contract submitted by the transferee; and (b) there is no evidentiary document

Article 97 of the Income Tax Act

2011Guhap10776 Revocation of Disposition of Imposing capital gains tax

KimA

Head of Central Tax Office

June 8, 2012

July 6, 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 000 for the year 2003 against the Plaintiff on October 8, 2010 is revoked.

1. Details of the disposition;

가. 원고는 2002. 10. 1. 서울 관악구 OO동 000 대 258㎡， 위 같은 동 000 대 129㎡ 및 그 지상 건물(이하 통틀어 '이 사건 부동산'이라 한다)을 취득하여 보유하다 가，2003. 5. 7. 피고보조참가인들(이하 '참가인들이라 한다)에게 이 사건 부동산을 양도하였다. 원고는 2003. 7. 31. 이 사건 부동산의 양도가액을 000원，취득가액을 000원으로 하여 피고에게 2003년 귀속 양도소득세 000원을 예정신고 및 납부하였다.

B. However, the Defendant deemed that the actual transfer value of the said real estate is not KRW 000, not KRW 000, but KRW 000, based on the fact that Park Do, one of the assignees of the instant real estate thereafter reported the acquisition value of 1/2 shares out of the said real estate as KRW 000, and accordingly, issued a correction and notification of KRW 000,000, capital gains tax attributed to the Plaintiff in October 8, 2010 (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed an objection with the Tax Tribunal on April 1, 201, but the said claim was dismissed on June 8, 2011.

[Grounds for Recognition] The non-contentious facts, Gap evidence 1 to 4 (including household numbers), Eul evidence 1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) According to the evidence, such as a real estate sales contract (Evidence A) submitted by the Plaintiff, and even if the actual transfer value of the instant subsidiary movable could sufficiently be recognized as 000 won, the Defendant’s actual transfer value of the said subsidiary movable is deemed 000 won and thus, it is unlawful for the Plaintiff to have adjusted the increase in the relevant transfer income tax.

(2) Since the Plaintiff legally declared the capital gains tax base within the statutory due date of return on the basis of the actual transfer and acquisition value of the instant real estate, the exclusion period of imposition of capital gains tax is five years pursuant to Article 26-2(1)3 of the Framework Act on National Taxes. The instant disposition was made after the exclusion period was exceeded, and thus illegal.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the Plaintiff’s first argument

Article 96 (1) of the former Income Tax Act (amended by Act No. 7006, Dec. 30, 2003; hereinafter the same shall apply) provides that the transfer value of assets under Article 94 (1) 1 and 2 of the same Act, in principle, shall be based on the standard market price at the time of transfer, and exceptionally, and Article 96 (1) 6 of the same Act provides that the transferor shall report the actual transaction value at the time of transfer to the head of the tax office having jurisdiction over the place of tax payment by the due date of final return on the tax base of transfer income along with evidential documents. Article 114 (4) of the former Income Tax Act provides that the transfer value of the real estate shall be based on the value under Articles 96 and 97 if the resident determines or revises the tax base of transfer income and tax amount, and that the actual transfer value of the real estate shall be calculated on the basis of 10G number or tax return, and if the reported value is different from the facts at the time of transfer or tax return, it shall be objectively included in the transfer value.

(A) On March 28, 2002, GoE, the former husband of the Plaintiff, entered into a sales contract for the instant real estate (hereinafter “instant sales contract”) with the Intervenor on behalf of the Plaintiff on behalf of the Plaintiff. The instant sales contract includes 00 won in the sales price of the said real estate, and the Intervenor Park DoD also reported the acquisition price of the said real estate as at the time the tax base for capital gains tax on the instant real estate was reported to 00 won.

(B) According to each of the above evidence, the following facts can be acknowledged: (a) after the conclusion of the instant sales contract, the Intervenor and the Plaintiff and the Plaintiff were to take over the Plaintiff’s debt worth KRW 000 on March 28, 2002 and KRW 000 on April 24, 2002, and KRW 000 on May 17, 2002, and KRW 000 on May 27, 2002, respectively; and (b) instead of paying the remainder of the sales price, the Intervenor took over the Plaintiff’s debt worth KRW 00 on the KK Saemaul Depository. The amount proved that the sales price was paid (=00) reaches at least KRW 98% of the sales price stipulated in the said sales contract.

(C) At the time of the Plaintiff’s transfer of the instant real estate to the Intervenor, the said real estate was subject to a close mortgage of KRW 000 and KRW 000,00 of the maximum debt amount in the name of the Plaintiff’s creditor. Generally, in light of the fact that the market price of the instant real estate took place at approximately 70 -80% in the collateral market, and the market price at the time of the instant real estate appears to have exceeded the transfer value claimed by the Plaintiff. In fact, the Intervenor Park GG offered the instant real estate to the Bank after the transfer of the instant real estate, and received the said real estate as collateral, according to the appraisal report prepared in the process of the lending appraisal by TT Appraisal Corporation, and the aggregate market price of the instant real estate reaches KRW 00 as of September 22, 2003.

(D) The sales contract (No. 6) dated March 15, 2003, which was submitted by the Plaintiff as an explanatory material, contains the sales price of the real estate in this case in KRW 000, but the above sales contract provides that the intervenor ParkD's seal impression is not affixed to the intervenor's seal impression, and ② the above certificate of seal impression is attached to the certificate of transaction as of May 23, 2003, which was submitted along with the above sales contract, but the above certificate of seal impression is issued on October 17, 2002, and it is difficult to deem that the above certificate was issued for the preparation of the above certificate. ③ The above sales contract stated that the plaintiff received the remainder of KRW 00 on May 5, 2003 from the intervenor, but it is difficult to believe the above contents.

(2) As to the second argument of the Plaintiff

According to Article 26-2 (1) 1 of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006), and Article 26-2 (1) 3 of the former Framework Act on National Taxes (amended by Act No. 8139 of Dec. 30, 2006), national taxes can not be imposed after the lapse of five years from the date on which national taxes can be imposed, but in cases where taxpayers evade national taxes by fraudulent or other unlawful means, national taxes can be imposed for ten years, and "Fraud or other unlawful acts" means fraudulent or other active acts that make it impossible or considerably difficult to impose and collect taxes. Based on the above legal principles, the following facts recognized as follows are acknowledged by the aforementioned facts and evidence, which were agreed to reduce capital gains tax, the plaintiff made a false report on capital gains tax standard (real estate sales contract), and the sales contract of this case is a contract prepared by the plaintiff with GoE, which is a representative, and the plaintiff's transfer income tax return and other unlawful acts are not justified.

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.