Review Transfer 2012-0253 (2013.05)

Where it is not confirmed that the book value is not the actual acquisition value, it may not be corrected as the conversion acquisition value.

If the original book value was reported with the actual acquisition value, and there is no objective presentation of evidence to verify that the book value is not real acquisition value, and it is reasonable to reject a request for correction that the acquisition value would result in the conversion acquisition value based on the standard market price.

2013 old-gu 50848 Revocation of Disposition rejecting capital gains tax rectification

IsaA

Head of the tax office;

November 6, 2013

November 27, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

In September 12, 2012, the defendant's rejection of the claim for correction against the OOO of capital gains tax belonging to the year 201 that the plaintiff paid to the plaintiff shall be revoked.

1. Details of the disposition;

A. On December 16, 1991, the Plaintiff newly built and owned 'BB', an office building of 5 underground and 16th floor above ground, in OO-Gu OO-dong 11-11. On February 15, 2011, the Plaintiff transferred 205 No. 205 (hereinafter "the instant officetel") among BB on May 31, 201, entered the transfer value as the actual transfer value as the OOO-O-dong 11-11 as the book value and scheduled return of the transfer income tax of 2011.

B. After that, on July 13, 2012, the Plaintiff calculated the acquisition value by mistake, and on which the acquisition value was converted into the conversion value rather than the book value, the Plaintiff filed a claim for correction to the Defendant for the reduction of the KRW OOO in the transfer income tax for the year 201. On September 12, 2012, the Defendant issued a notice of refusal to file a claim for correction to the Plaintiff (hereinafter “instant disposition”).

C. The Plaintiff filed an appeal with the Tax Tribunal, but was dismissed on December 18, 2012.

Facts without any dispute, Gap's 1 through 5, Eul's 1, and the purport of the whole pleadings.

2. The assertion and judgment

A. Summary of the plaintiff's assertion

BB is a building newly built prior to approximately 22 years, and there is no documentary evidence supporting the real acquisition value with respect to the instant officetel. In the instant preliminary return of transfer income tax, the acquisition value was written according to the book value of the land and building prepared for the filing of global income tax return, which was either underestimated for the purpose of reporting global income tax, and it did not have real acquisition value.

(b) Fact of recognition;

(1) The instant officetel was commenced after the Plaintiff acquired the relevant site on September 1989, and it was unsold in lots among BB officetels sold on or around December 1991, and the Plaintiff used it for rental business prior to the date of the instant transfer.

(2) From September 4, 1989, the Plaintiff continued to start real estate rental business and keep the account books by double entry system. After adjustment, the Plaintiff reported real estate rental income by attaching the total revenue statement.

In addition, when preparing the statement of total amount of income, such as rental deposit in 2011, the plaintiff calculated the construction cost on the premise that real estate acquisition is confirmed.

(3) The area of the section for exclusive use of the instant officetel is 290.64 square meters (297.44 square meters for the section for common use) and the site is 50.46 square meters. [The value per 1 square meter of a building in light of the reported book value shall be OO (i.e., OO., reported value ± 588.08 square meters for the section for common use).]

(4) In addition, when an officetel in BB was first sold, its value was published in daily newspapers as OOOO or OOOO (OOO or KRW 63.31mm2 per square meter per square meter). In addition, BBB Nos. 815, 1309, and 1403 are 32.89m2 (the area of the section for common use is 30.42m2) and the site ownership is 5.43m2, and the actual sale price is 00m2 per square meter of a building.

(5) Meanwhile, according to the standard financial statements prepared by the Plaintiff with respect to the instant officetel owned and used for rental business, the depreciation rate for the instant officetel building from the end of 1995 to the end of 2009 is 61.4% in total.

Facts that there is no dispute over recognition, Gap's 3 through 5, Eul's 3 through 9 (including numbers in each letter), the purport of the whole pleadings.

C. Determination

(1) Reversion of the burden of proof

(A) Under Articles 96 and 114 of the Income Tax Act, the transfer value and acquisition value shall be determined based on the actual transaction value in determining the tax base and tax amount of capital gains. However, in cases where the actual transaction value at the time of transfer or acquisition of the relevant asset is not recognized or confirmed by books or other evidentiary documents due to the reasons prescribed by Presidential Decree, the transfer value or acquisition value may be determined or corrected by making an estimate investigation according to the transaction example, appraisal value, conversion value (referring to the actual transaction value, transaction example value, or appraisal value converted by the method prescribed by Presidential Decree), or the standard market value, etc. (Article 114(7) of the Income Tax Act). Accordingly, Article 176-2(1) of the Enforcement Decree of the Income Tax Act provides that where books, sales contracts, receipts and other evidential documents necessary to confirm the actual transaction value at the time of transfer or acquisition do not exist or where it is impossible to recognize or confirm the actual transaction value due to the lack of important parts, etc., the estimated assessment

(B) Meanwhile, since the tax authority bears the burden of proof of tax requirements as to the transfer value as in this case, even if the taxpayer claims that the actual transaction value cannot be confirmed, the tax authority must prove the actual transaction value as to the actual transaction value, and if the taxpayer fails to prove it, the tax authority shall make the estimation based on the conversion value, etc. Furthermore, even if the asset value is entered in the book prepared and kept by the taxpayer, it cannot be deemed that the entry has the effect of confirming the actual acquisition value of assets, and it cannot be deemed that the taxpayer cannot make any assertion contrary to the statement because the entry itself has the effect of accelerating the taxpayer (see Supreme Court Decision 87Nu536, Feb. 9, 198).

(C) However, in the case of the instant case, the Plaintiff, the taxpayer, as the party who acquired and sold BB by directly constructing and selling the instant officetel, and continuously leased it, may not be deemed as the direct possession, knowledge, or readily recognizable circumstances, of the cost required for the construction of the entire BB, the actual acquisition value of the instant officetel, and all relevant documents. Furthermore, if the Plaintiff voluntarily made a preliminary return of capital gains tax as the real acquisition value of the book value kept by the Plaintiff while operating the instant officetel for a long time, the burden of proof is not imposed on the Defendant in the event that the book value is reversed as it is the real acquisition value of the instant officetel.

(D) In other words, in a situation where a taxpayer does not cooperate in the collection of taxation data, it is extremely difficult to require the tax authority to collect data related to the expenses incurred in the new construction of BB prior to the 20-year period and the details of the actual purchase price, and to prove that the book value corresponds to the actual acquisition price. If a taxpayer voluntarily permits the taxpayer to deny the books prepared and submitted on the premise that he/she faithfully prepared the books at the time of filing the global income tax return, not only the amount of real acquisition price based on the book but also the amount reported by the taxpayer on his/her own under the premise that he/she faithfully prepared the books at the time of filing the global income tax return, the basis of the tax return and payment system would be undermined, and even after the five-year period of keeping documentary evidence, it is likely to cause a taxpayer deemed disadvantageous to choose to choose whether to apply more favorable conversion values.

(E) Therefore, it is reasonable to view that, in such a case, only if the acquisition value is confirmed by the documentary evidence related to acquisition, only the book value consistent with it can be recognized as the real acquisition value, and even if not necessarily based on the documentary evidence related to acquisition, the tax authority is sufficient to prove considerable circumstances that can be viewed as the real acquisition value even if it is not necessarily based on the documentary evidence related to acquisition. When proving such considerable circumstances, it is reasonable to view that the taxpayer who intends to deny the book value should prove that the entry of the book is different from other documentary evidence regarding the real acquisition value, i.e., the actual cost required for the acquisition of the instant officetel or the bank appraisal value at the time of the acquisition, or that the book is different from the actual acquisition value by stating reasons that it cannot be recognized as the real acquisition value. If there is no other evidence supporting the assertion of the taxpayer who denies the book value, it is not unlawful for the tax authority to reject

(2) Whether the book value in this case can be viewed as real acquisition value

(A) Based on the foregoing legal doctrine, the health team returned to the instant case and according to the facts acknowledged earlier, the following circumstances can be inferred.

① The Plaintiff acquired BB site and newly built BB officetels and directly engaged in rental business. As such, the Plaintiff appears to have well known or could have easily known expenses incurred in the construction of BB, the sales price of each officetel, and the acquisition price of the instant officetel. ② Since 1989, the Plaintiff continuously engaged in real estate rental business, and the Plaintiff appears to have filed a global income tax return, etc. on real estate rent under the premise that the acquisition price of the instant officetel was verified at the time of the instant preliminary return of transfer income tax, and there is no circumstance to deem that the Plaintiff voluntarily recognized the acquisition price of the instant officetel as identical with those of the previous tax return at the time of the instant preliminary return of transfer income tax, and there was any error or error at the time of the instant tax return. ④ The Plaintiff did not properly assert or prove the real acquisition price of the instant officetel at the time of the instant preliminary return of transfer income tax, and even at the time of new sale or sale, the Plaintiff did not present any data regarding the instant sales price at the time of the instant preliminary return of sale or sale price.

(B) Comprehensively taking account of the above, the Defendant proven that the book value reported by the Plaintiff was real acquisition value. However, the Plaintiff, seeking to deny the book value, did not submit any evidence that the entry of the book value differs from the real acquisition value. As long as there is no evidence to support the Plaintiff’s assertion, it is lawful to recognize the book value reported by the Defendant as the real acquisition value in calculating the transfer income tax of this case.

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.