Seocho 2014west 3758 ( November 25, 2014)

Testimony of a witness concerning necessary expenses is difficult to believe and be recognized only by the evidence of a taxpayer, or there is no evidence.

In a reasonable case, recognizing the necessity of proof to the taxpayer is consistent with the concept of fairness. The testimony of the witness of this case is difficult to believe and the evidence submitted alone is insufficient to recognize necessary expenses or there is no evidence.

Article 97 of the Income Tax Act

2015Gudan5052 Revocation of Disposition of Imposing capital gains tax

tanks 00

Head of Yongsan Tax Office

March 23, 2016

April 20, 2016

1. The Defendant’s disposition of imposition of capital gains tax of KRW 692,581,940 (including additional taxes) for the year 2003 owed to the Plaintiff on May 1, 2014 that exceeds KRW 665,042,40 (including additional taxes) shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 80% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

Cheong-gu Office

Defendant’s transfer income tax of 692,581,940 won (additional tax) for the Plaintiff on May 1, 2014, 2003

(including) revoke the portion exceeding 544,169,780 won of the disposition of imposition.

1. Details of the disposition;

A. The Plaintiff acquired the right to sell a parcel of land from 00 00 - 00 - 00 - 600 - 700 - 700 - 700 m2 (hereinafter referred to as “the right to sell the parcel of land in this case”) but transferred it to the Plaintiff, a corporation within 000 m23 July 2003 (hereinafter referred to as “anal 00

B. On September 15, 2003, the Plaintiff calculated the transfer value of the sales right of this case to the Defendant as the actual transaction price of KRW 1.677 billion, the acquisition price of KRW 1.377 billion, and the necessary expenses at KRW 0,000,000 as the actual transaction price, and scheduled and paid the transfer income tax of KRW 94.93 million.

C. On May 1, 2014, the Defendant: (a) the transfer value of the instant sales right to the Plaintiff KRW 2.787.5 million; and (b) the Plaintiff shall take place.

Based on the premise that the acquisition value is KRW 1.61 billion (i.e., KRW 1.37 billion + KRW 236 million) and necessary expenses, the transfer income tax of KRW 692,581,940 for the year 2003 (including penalty tax of KRW 32,298,236 for failure to report, and penalty tax of KRW 343,843,704 for failure to report) was additionally paid (hereinafter referred to as “instant disposition”).

D. The Plaintiff completed the pre-trial procedure.

[Ground of recognition] Facts without dispute, Gap 1, 3, 4 evidence, Eul 1 and 6 evidence, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Of the acquisition value of the instant sales right, the Defendant recognized the premium of KRW 236 million paid to Park 00,000 to the former owner, but the Plaintiff paid KRW 367 million to Park 00,000,000 to the former owner, so the acquisition value is KRW 1.74 billion (= + KRW 1.377 billion + KRW 367 million of the sales price + KRW 367 million of the sales price). In addition, since the Plaintiff paid KRW 70,000 as brokerage commission, the Plaintiff paid KRW 70,000,000 to the former owner, it should be recognized as necessary expenses. Accordingly, the Defendant’s disposition of this case made on a different premise is unlawful.

B. Determination as to the assertion on acquisition value (whether the premium was caused by 367 million won or not)

(1) The tax authority shall bear the burden of proving the tax base that is the basis of taxation in a lawsuit seeking the revocation of the income tax disposition, and the tax base is deducted from necessary expenses, so the tax authority shall bear the burden of proving the income and necessary expenses in principle. However, since the tax authority is not only favorable to the taxpayer, but most of the facts causing necessary expenses are located within the territory under the control of the taxpayer, and thus the tax authority is difficult to prove. Thus, if it is reasonable to prove the taxpayer by taking into account the difficulty of proof or equity between the parties, it accords with the concept of fairness to recognize the necessity of proof for the taxpayer (see Supreme Court Decision 2006Du16137, Oct. 26, 2007).

(2) In light of the following circumstances, it is difficult to believe that the witness Park 00 testimony that corresponds to the fact that the actual acquisition value of the instant parcelling-out right is KRW 1.74 billion is difficult, and it is insufficient to recognize it by only the descriptions of Gap 5 and Gap 8 through 10 (including the serial number; hereinafter the same shall apply). There is no evidence to prove that the actual acquisition value of the instant parcelling-out right exceeds KRW 1.613 billion.

① In addition to the purport of the Plaintiff’s statement Nos. 4, 5, 7, and 8, at the time of tax investigation, the Plaintiff and 00 won paid KRW 2.7 billion to the Plaintiff and 2.5 billion on March 15, 2002, KRW 137 billion, and KRW 500,000,000, KRW 6850,000,000, KRW 2.5 billion, which was 600,000,000,000, KRW 500,000,000,000, KRW 2.706,000,000,000,000, KRW 2.5 billion,000,000,000,000,000,000 KRW 2.7,506,000,000,000,00

② According to the statements in the evidence Nos. 9 and 10 and the witness Park 00’s testimony, Park 00 stated to the effect that all the money deposited in the account under the name of Park 00 and Park 00 from July 23, 2003 to July 30, 2003 was received at the premium of the instant sales right, and that the money deposited in the account under the name of Park 00 or Lee 10 from July 23, 2003 to July 30, 2003 was excluded from the withdrawn money, there was no evidence to support that the money was paid by the Plaintiff or paid part of the said money to the Plaintiff.

③ In entering into a contract for the transfer of the right to parcel out this case, the Plaintiff and Park 00 asserted that, after the Plaintiff transferred the right to parcel out this case to a third party, the amount additionally paid is included in acquisition value as the Plaintiff agreed to additionally pay to Park 00 an amount equivalent to the ratio of investment shares of Park 00 out of the amount excluding brokerage commission, transfer income, sale price, and premium 223 million won to be paid to Park 00,000,000 won, etc., which was actually paid by the Plaintiff from the transfer proceeds. However, even if such profit distribution method is recognized, if the Plaintiff transfers the right to parcel out this case, it is difficult to view the amount paid by the said agreement to be paid to the owner of the right to parcel out this case as the actual transaction price for the acquisition of the right to parcel out

(3) Therefore, the Plaintiff’s assertion on this part is without merit.

C. In light of the legal principles as seen earlier, it is acknowledged that the Plaintiff paid KRW 35 million to an intermediary fee at the time of transfer of the right to sell the instant real estate to an Ansan 00, in full view of the following: (a) the Plaintiff paid KRW 35 million to the broker if there is an intermediary when concluding a sales contract on the real estate and transferring the real estate; and (b) the Plaintiff stated that the Plaintiff was paid KRW 35 million as the intermediary fee at the time of transfer of the right to sell the instant real estate to an Ansan 00; and (c) the Plaintiff paid KRW 35 million as the intermediary fee at the time of transfer of the right to sell the instant real estate to 00.

Furthermore, although the plaintiff alleged that he paid KRW 70 million as a brokerage commission, the testimony of Park 00 as a witness corresponding thereto is not reliable, it is not sufficient to recognize the evidence alone, and there is no other evidence to acknowledge it.

Therefore, this part of the Plaintiff’s assertion is justified within the scope of KRW 35 million.

(d) Calculation of justifiable capital gains tax;

If the transfer income tax to be paid by the Plaintiff based on the above facts of recognition is calculated, the portion exceeding KRW 665,042,408 of the instant disposition is unlawful.

3. Conclusion

Thus, the plaintiff's claim is accepted within the above scope of recognition, and the remaining claims are dismissed as they are without merit.