Daegu District Court 201Guhap3106 ( December 21, 2011)

Cho High 201-Gu1024 (201.09)

Since it is recognized that land is acquired in accordance with the payment agreement, the amount of the settled claim falls under the actual transaction price.

After the conclusion of a contract for sale and purchase of land, a statement of settlement of obligation to transfer ownership is prepared in lieu of the amount of claim, and accordingly, it can be recognized that the registration of transfer of land is completed in lieu of the amount of claim.

Article 97 of the Income Tax Act

2012Nu219 Revocation of Disposition of Imposing capital gains tax

XX

Head of Dong Daegu Tax Office

Daegu District Court Decision 201Guhap3106 Decided December 21, 2011

June 22, 2012

July 20, 2012

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposing capital gains tax of KRW 000 for the year 2008 against the Plaintiff on March 1, 201 is revoked.

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

Pursuant to the claim and the purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On January 14, 2009, the Plaintiff acquired the Plaintiff’s payment of loans equivalent to KRW 000-3,389 square meters in payment from the Cheongyang-do, Chungcheongnam-do, Chungcheongnam-do, and KRW 13,889/47,603 of the same Risan 10,217 of the same Risan 10,217 square meters, and KRW 5,952 of the same Risan 00-3, and KRW 3,395 square meters in total (hereinafter collectively referred to as “the land in this case”), around December 20, 2005, the Plaintiff acquired the Plaintiff’s payment of loans equivalent to KRW 00 from thisA as a payment for loans, and acquired the Plaintiff’s payment of KRW 3,389 square meters in payment from the Cheongyang-do, Seoyang-do, Chungcheongnam-do, and made a preliminary return with respect to the land in this case for which transfer income tax was not paid for 208 years.

B. Regarding this, the Defendant recognized the acquisition value as KRW 000 (including additional tax) for the Plaintiff’s 2008 transfer income tax as the conversion price under Article 97(1)1(b) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter “former Income Tax Act”) and Article 176-2(2) of the Enforcement Decree of the same Act, on the ground that it is unclear that the Plaintiff could not confirm the actual transaction price required for the Plaintiff to acquire the instant land because it is unclear that the actual loan was made to thisA, and issued a disposition imposing it on the Plaintiff on March 1, 201 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 5, 7, Gap evidence 6-9, Eul evidence 1, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

Since the Plaintiff acquired the instant land as a substitute payment for loan claim 000 won with respect to this case’s land, the acquisition price of this case’s land shall be deemed 000 won, which is the actual transaction price. However, the Defendant calculated gains on transfer by deeming 000 won, which is the conversion price, as the acquisition price. Of the transfer price of this case’s land 000 won, the Plaintiff’s remaining 00 won, which was not paid by the Plaintiff, should be excluded from the transfer price. In light of the

3. Related statutes;

Attachment 'Related Acts and subordinate statutes' shall be as shown.

4. Determination

A. According to the provisions of Articles 96(1), 97(1)1 and 144(7) of the former Income Tax Act, the acquisition value in the calculation of gains on transfer shall be the actual transaction price required for the acquisition of assets. In case where it is impossible to confirm the actual transaction price at the time of acquisition, the acquisition value shall be determined based on the transaction example, appraisal value or conversion value as determined

Meanwhile, in a case where a contract for acquisition and transfer, transaction confirmation and certificate of personal seal impression, etc. are submitted as documentary evidence related to actual transaction price, the tax authority should calculate gains on transfer based on the actual transaction price under each of the above contracts, barring special circumstances, such as that each of the above contracts was prepared differently from the actual transaction price. In such a case, the tax authority should only prove that such special circumstances exist (see, e.g., Supreme Court Decisions 95Nu3183, Jun. 25, 1996; 92Nu282, Nov. 24, 1992).

B. In the case of this case, the plaintiff collected the purport of Gap evidence 6-2 to 8, and 16's arguments, and the plaintiff settled the amount of money invested in real estate development and investment since November 15, 2005, and as of November 15, 2005, the amount of the plaintiff's claim against Eul as of "real estate investment (such as this case's land)" and real estate redevelopment (U.S.), 00 won for multi-family housing (U.S.), 00 won for multi-family housing (U.S. 200-11, hereinafter referred to as "multi-family housing of this case"), 00 won for new construction of 00 won for the above 20-Ga, and 2000 won for the purchase and sale of this case's land as security, and 200-Ga's settlement method after the settlement of the claim amount between the plaintiff and the defendant pursuant to the sale contract of this case's 20-Ga.

C. On this basis, the Defendant asserts that, in light of the fact that “the Plaintiff extended a considerable amount of 00 won over a long period, and there is no document related to loans, such as a loan certificate, etc. made between thisA and the representative director, the Plaintiff appears to have paid KRW 00 as the purchase price of stocks. It is presumed that this case’s multi-family house was paid out of the purchase price of the multi-family house, and that the Plaintiff’s husband’s husband’s deposit deposit account was not known over several times, and that the Plaintiff remitted 00 won to this case’s land to this case’s payment of 00 won, it is difficult to view that the Plaintiff acquired the instant land due to the Plaintiff’s transfer of 00 won to this case’s loan as the payment of 12 through 15, A, 10, 16, and 15-1 through 4, respectively, the Plaintiff’s total purchase price of the instant land and the purchase price of the instant 200 won following the purchase price of the instant land.

Rather, considering the following facts: (a) evidence Nos. 4-1, 2, 6-1 through 20, 9, 13, and 14 of the evidence Nos. 4-1, 2, and 6-1, and (b) and the overall purport of the pleadings as a result of the reply by the Daegu Bank and the NACCC on the order to submit financial transaction information of this court; (c) the Plaintiff, prior to the instant payment agreement, can be acknowledged that, prior to the instant payment agreement, the Plaintiff had actual claims against this case, such as loans related to the construction of the instant multi-family house related to the real estate investment of the instant land, 00 won, 00 won, 00 won, 00 won, 00 won, and 00 won, e.g., the acquisition price of the loan by the KGF, which was secured by the instant land, as seen earlier between the Plaintiff and the Plaintiff.

D. Therefore, the Plaintiff’s acquisition of the instant land from this case under the instant accord and satisfaction agreement constitutes a case where the actual transaction price at the time of acquisition can be confirmed as KRW 000,00, which is the amount of credit settled as seen earlier, and thus, in order to calculate the transfer income tax, the transfer income tax cannot be imposed because there is no transfer margin if the acquisition price is deducted from KRW 00,000, which is the transfer value under the contract for the purpose of calculating the transfer income tax. However, the Defendant’s disposition imposing the transfer income tax on the Plaintiff calculated by applying the acquisition value at KRW 00,000, which is the conversion value at the time of acquisition of the instant land, on the ground that it

5. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance which has different conclusions is unfair, so it is revoked and it is so decided as per Disposition with the decision to cancel the disposition of this case.