Seoul Administrative Court 2008Gudan17441 ( August 11, 2009)

Real Acquisition Value of Real Estate

The plaintiff asserts that the acquisition value of real estate is 400 million won, but the evidence submitted alone cannot be believed, and thus, it is legitimate to calculate gains on transfer by deeming that it constitutes a case where the distinction between the value of land and buildings

The contents of the decision shall be the same as attached.

1. The plaintiff's claim that is changed in exchange in the trial is dismissed.

2. The total costs of the litigation shall be borne by the Plaintiff.

1. Purport of claim

The part exceeding KRW 35,890,90 among the disposition of imposition of capital gains tax of KRW 122,838,913, which the Defendant rendered to the Plaintiff on June 1, 2009, exceeds KRW 35,890,90 (the Plaintiff changed the claim in exchange for the claim in the trial).

2. Purport of appeal

The decision of the first instance is revoked. The part exceeding 35,890,909 won out of the imposition of capital gains tax of 106,535,018 won for the Plaintiff on September 1, 2007, which was imposed by the Defendant on the Plaintiff on September 1, 2007, shall be revoked (for example, " September 2, 2007," the purport of the appeal shall be deemed to be erroneous

1. Circumstances of the disposition;

가. 원고는 2005. 12.경 주식회사 ●●●영(이하 '●●●영'이라 한다)으로부터 신축 중이던 ○○ ○○구 ○○동 1280-6 ☆☆타운 ■■단지 내 ▷▷동 제108호-112호의 분양권(이하 '이 사건 분양권'이라 한다)을 1~억 원에 취득하였다가, 2006. 1. 20. 허 AA에게 이를 14억 3,000만 원에 양도하였다. 원고는 이를 사업소득으로 보고 그에 대한 양도소득세를 신고 ・ 납부하는 대신 위 분양권의 양도와 관련하여 2006. 8. 9. 2006년 1기분 부가가치세 24,710,360원을 확정 신고 ・ 납부하였다.

나. 원고는 2006. 8. 22. 허AA로부터 완공된 ▷▷동 제108호-112호(이하 '이 사건 상가'라 한다)를 15억 원에 다시 취득하고, 같은 날 그 중 제112호(이하 '이 사건 부동산'이라 한다)를 김BB에게 3억 2,500만 원에 양도한 다음, 그 취득가액을 4억 원으로 하여 양도차손 75,000,000원이 발생한 것으로 2006년 귀속 양도소득세 예정신고를 하였다.

C. On June 20, 2007, the Defendant notified the head of △△△ of the details of the decision of capital gains tax based on a regular audit. On September 1, 2007, the Defendant imposed capital gains tax of KRW 104,40,170, the transfer value of the sales right of this case, KRW 325,000,000, calculated by applying the acquisition value to KRW 116,50,000,000, which is calculated based on the ratio of the standard market value of the commercial building of this case to the total market value of the commercial building of this case, and the transfer value of the real estate of KRW 104,40,500,000, which is calculated based on the ratio of the standard market value of the real estate of this case to KRW 296,535,000,000, including capital gains tax of KRW 911,

D. On April 8, 2008, the Plaintiff filed an appeal, and on September 26, 2008, the Tax Tribunal rendered a decision to deduct the acquisition tax and registration tax of the instant real estate from the necessary expenses. On October 9, 2008, the Defendant issued a corrective disposition to reduce the said transfer income tax by 10.376.653 won. Accordingly, the said transfer income tax was reduced by 106,535,018 won.

E. On February 12, 2008, the Plaintiff filed the instant lawsuit seeking the revocation of the instant disposition, and on June 1, 2009, the Defendant rendered a disposition to increase or decrease capital gains tax to increase KRW 16,303,890 by excluding KRW 24,710,360 for the first term portion of 206, which was paid by the Plaintiff in relation to the transfer of the instant sale right (hereinafter referred to as the “instant disposition”), thereby, the capital gains tax for the said 2006 against the Plaintiff was finally KRW 122,838,908.

Facts that there is no dispute over the basis of recognition, Gap's articles 1 through 3 (including paper numbers), Eul's evidence 1 and 7, the purport of the whole arguments in each of subparagraphs 1 through 3

2. Whether the dispositions of the instant case are legal.

(a) a master of the Party;

(1) Summary of the Plaintiff’s Claim

On December 2005, the Plaintiff acquired the right to sell the instant commercial building in KRW 1.2 billion from Doudong, and transferred the instant commercial building in KRW 1.43 billion to Doudong on January 20, 2006. However, the Plaintiff acquired the instant commercial building in KRW 230 million again from Doudong on August 22, 2006 and transferred the instant commercial building in KRW 325 million to KimB, thereby causing loss in the transfer of KRW 75 million. Based on this, the amount of loss in the instant commercial building in KRW 35,809,90 is only KRW 350,09,000,000,000,000. Accordingly, the portion of the instant disposition in excess of KRW 35,809,909,09 should be revoked.

(2) Summary of the defendant's principal

The Plaintiff merely acquired the instant commercial building in the amount of KRW 15,00 from the HuA and did not acquire the instant real estate in the amount of KRW 400,000,000. Therefore, the acquisition value of the instant real estate falls under the case where the distinction between the value is unclear and thus the amount calculated in accordance with the standard market

B. Determination

(1) The key issue of the instant case is whether the Plaintiff acquired the instant commercial building with KRW 400 million at the time when the Plaintiff purchased KRW 1.5 billion.

(2) First of all, HuA testified that at the time of selling the instant commercial building to the Plaintiff, the price of the instant commercial building was set at KRW 400 million, and according to the evidence Nos. 3-1 through 5, Nos. 4, 5, and 13, the following facts can be acknowledged. Accordingly, the acquisition price of the instant commercial building may be deemed KRW 400 million.

C DominA purchased the right to sell the instant real estate from the Plaintiff, and drafted the sales contract with the approval seal on May 15, 2006, Do○○ and the new sales contract with the Plaintiff on May 15, 2006. Of them, the sales contract with respect to the instant real estate stated the sale price as KRW 400 million along with the indication, and the remaining sales contract with respect to the commercial building is stated as the sale price as KRW 200 million each, along with the indication. Accordingly, the ownership transfer registration with respect to the instant commercial building was written as KRW 40 million, while the transaction price of the instant real estate was written as KRW 200 million, respectively.

C. On August 22, 2006, the Plaintiff drafted a sales contract with the content that the Plaintiff would be paid in full on the day when purchasing KRW 1.5 billion in total from the HuA, and that the Plaintiff would be paid in full. On the right side of the attached Table 1(5) of the above sales contract, “40 million won, which appears to be the sales price of the instant real estate,” and “275 million won, which appears to be the sales price of each remaining commercial buildings,” respectively, and the Plaintiff reported a real estate transaction contract according to the amount indicated as the above.

O The real estate of this case is close to the entrance, and it is similar to the location condition of 111 among the remaining commercial buildings, but it is more favorable than 108 to 110.

(3) However, in light of the following circumstances, it is difficult to believe that the Plaintiff acquired the instant real estate in KRW 400 million from HuA based on the evidence Nos. 2 through 6 (including additional numbers) and 13 as well as the overall purport of the pleadings, and the evidence presented by the Plaintiff, including the above evidence No. 4, are insufficient to recognize that the Plaintiff acquired the instant real estate in KRW 400 million from HuA.

O A sales contract (No. 2-3) prepared by the Plaintiff at the time of selling the instant sales right to the HuA to the effect that the sales contract (No. 2-3) shall be KRW 1,430,000,000 in a lump sum, unlike the sales contract for approval seal, and among them, the sales contract for the instant real estate shall be KRW 1,430,000,000,000

O. The sales price of the instant real estate claimed by the Plaintiff is KRW 400 million, and is remarkably higher than KRW 275 million, which is claimed by the Plaintiff as the sales price of the remaining commercial buildings. The instant real estate is 52.3 square meters in its supply area and the remaining commercial buildings (Articles 108 through 111) and its exclusive area are equal or greater than 52.3 square meters, and the standard market price of the instant commercial building as of January 1, 20-7, which was first announced after completion, is lower than KRW 6,806,00 per square meter among the instant commercial buildings. In addition, it is difficult for the Plaintiff to convert the lease deposit and rent (for the instant real estate, KRW 50,000,000 in monthly rent of KRW 50,000,000 in monthly rent of KRW 300,000,000 in monthly rent of KRW 31,50,000 in monthly rent of each of the instant commercial buildings into KRW 31,500,00,00,000.

O) On August 22, 2006, a sales contract (No. 400 million won) presented by the Plaintiff on the ground that the acquisition value of the instant real estate was KRW 400 million, stating that the sales contract (No. 400 million), including the instant real estate, was made in a lump sum with 1.5 billion won as the object of the sale of the entire commercial building, including the instant real estate, in printed form. 400 million won claimed by the Plaintiff was written in the attached list No. 1, and there is doubt as to whether the said KRW 400 million was written under the agreement with the HuA at the time of the said sales contract, as it is impossible for the Plaintiff to deliver the said real estate ( further, HuA

(O) A written confirmation (No. 3) that the HuA voluntarily prepared the instant commercial building was written by dividing the amount by each commercial building at the time when the HuA sells the instant commercial building to the Plaintiff, and entered into a collective contract without preparing a sales contract. In particular, the instant real estate was sold to the Plaintiff without paying profits of KRW 50,000,000,000, which was able to sell the remainder of the commercial building at KRW 1.2 billion in total, and as such, it was written that the Plaintiff sold the total amount of KRW 1.5 billion in total.

In light of the fact that the Plaintiff sold the instant real estate to KimB on August 22, 2006 with the sales price of KRW 400 million other than the instant real estate, the Plaintiff’s report on the real estate transaction contract is not likely to intentionally increase the value of the instant real estate for the purpose of processing the transfer income tax. The letter of self-inspection of May 15, 2006 between △△△△ and HuA on May 15, 2006, stating the amount of the instant real estate as KRW 20 million, while the remaining value of the instant real estate was stated as KRW 40 million each, the real estate sales contract between the Plaintiff and HuA on August 22, 2006, which was executed on August 22, 2006, was stated as KRW 40 million, and the remaining value of the instant real estate was stated as KRW 275 million,500,000,000,000 for each of the real estate and its actual value are not consistent with.

O It is very rare that the Plaintiff sells the instant real estate at least 75 million won on the same day (or within the nearest time) after acquiring the instant real estate (the Plaintiff asserted that the said real estate was sold to HuA as above in order to prepare the sales price to be paid to HuA, but if the Plaintiff’s failure to prepare the sales price was so difficult that it should be deemed as loss of KRW 75 million, then the Plaintiff would not have any reason to purchase the instant commercial building from HuA as well as that it is reasonable to purchase only the remaining commercial building except the instant real estate).

(4) As long as it is difficult to recognize the actual acquisition value of the Plaintiff’s assertion on the instant real estate, it constitutes “where the distinction between the value of land and buildings is unclear in calculating the quantitative margin from the actual transaction value” under Article 100(2) of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006), and thus, Article 166(4) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19687 of Sept. 22, 2006), Article 48-2(4) proviso and 1 of the Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 19892 of Feb. 28, 2007), the amount calculated in proportion to the value calculated according to the standard market value as of the date of transfer contract shall be applied as the acquisition value.

Therefore, it is reasonable to estimate transfer income tax on the acquisition value of real estate of this case in accordance with the ratio of the standard market price of the real estate of this case to the total market price of the real estate of this case as the standard market price of the real estate of this case in the disposition of this case by the defendant.

3. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance becomes null and void due to the withdrawal due to the exchange change of the lawsuit in the trial. It is so decided as per Disposition.