Suwon District Court 2009Guhap2448 ( October 12, 2010)

A sales contract in accordance with the actual contents of the contract, the acquisition price in the contract shall be the actual transaction price.

In light of the fact that the date when a sales contract was prepared is consistent with the date when the grounds for registration are affixed to the real estate registration injury and the remaining payment date is consistent with the date of registration, it is deemed that the acquisition value under the contract is acquired as a sales contract in accordance with the actual contents of the contract, and the total cost of approval for sale cannot be deemed as necessary

2010Nu39184 Revocation of Disposition of Imposing capital gains tax, etc.

Gue XX

Head of the Pakistan Tax Office

Suwon District Court Decision 2009Guhap2448 Decided October 12, 2010

August 24, 2011

September 28, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant revoked the disposition of imposition of capital gains tax of KRW 150,405,460 against the plaintiff on December 1, 2008 (the plaintiff revoked the disposition of imposition of capital gains tax of KRW 15,040,540 at the trial).

1. Details of the disposition;

A. On March 26, 2003, the Plaintiff completed the registration of the transfer of ownership on March 11, 2002 with respect to the land of this case and the land of this case 70 m20 m20 m20 m20 m23,326 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m20 m270 m20 m20 m20 m20.

B. The instant land was sold in KRW 1,611,00,000 to SungA through a voluntary auction procedure on September 1, 2004.

C. As a result of the actual transaction investigation of the instant land, etc., the Defendant recognized the acquisition value of the instant land as KRW 1,046,00,000 and calculated the acquisition value of the instant land as KRW 969,948,872 in proportion to the standard market price ratio. After calculating the transaction value, the Defendant issued the instant disposition imposing capital gains tax of KRW 150,405,460 to the Plaintiff on December 1, 2008, by deducting the brokerage commission paid by the Plaintiff to KimB from the transfer value, KRW 279,000,000, the registration tax of KRW 56,172,00,000, and the land improvement cost of KRW 50,000 from the necessary expenses.

[Ground of recognition] Facts without dispute, Gap 1, 2, 4, 9 (including each number), Eul 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On January 21, 2002, the Plaintiff agreed to purchase the instant land at 1.5 billion won including the so-called sales approval work cost of 267 billion won, from KimB, represented by KimB, on January 21, 2002. On March 26, 2002, the Plaintiff entered into a contract with KimB to purchase the instant land at 1.212 billion won. The Plaintiff paid 2.5 billion won to KimB, an agent of KimB on April 30, 2002, including 2.5 billion won paid on April 30, 2002, to KimB and 1.479 billion won or other necessary expenses. Accordingly, the transfer margin of the instant land is against the transfer value of 1.67 billion won (i.e., the acquisition value of 1.6 billion won - 1.2 billion won - 1.2 million won - 1.2 million won working cost of 2 million won or more - 6.5 billion won or more, and the registration tax of this case.

B. Organization of issues

As seen earlier, the Defendant calculated gains on transfer by recognizing transfer as necessary expenses the sum of KRW 279 million paid by the Plaintiff to KimB (the down payment of KRW 50 million paid on January 21, 2002 + the intermediate payment of KRW 50 million paid on February 6, 2002 + the intermediate payment of KRW 70 million paid on March 4, 2002 + the intermediate payment of KRW 84 million paid on March 14, 200 + the intermediate payment of KRW 25 million paid on April 4, 202 + the intermediate payment of KRW 25 million paid on April 4, 200, and KRW 56,172,00 and land improvement expenses of KRW 50 million.

Therefore, the key issue of the instant case is: (a) whether the Plaintiff’s payment of the acquisition value of the instant land to KimB and XX Construction constitutes KRW 1.2 billion as alleged, or not, KRW 969,948,872 as calculated by the Defendant; and (b) whether the Plaintiff’s payment to KimB on April 30, 2002, KRW 250,000,000 or KRW 267,000,000,000 may be deemed necessary expenses.

(c) Related statutes;

Attached Form A shall be as follows.

D. Determination

(i)Determination of acquisition value;

According to the following circumstances, it is reasonable to view that the Plaintiff acquired the instant land, etc. from construction on March 11, 2002 at KRW 1,046,00,000,000,000,000,000,000 won, based on the evidence Nos. 2, 3, 5, 14, and 1,200,000 won, and the fact-finding results of the first instance court's fact-finding on the XX construction. Thus, the Plaintiff's assertion that only the instant land was acquired at KRW 1.2 billion is not acceptable.

① During the instant lawsuit, the Plaintiff submitted a sales contract (Evidence No. 3-2) dated January 21, 2002, prepared between the Plaintiff and the Plaintiff and KimB with respect to the instant land as follows, and the sales contract (Evidence No. 3-2) dated March 26, 2002, prepared between the Plaintiff and XX Construction, and the Plaintiff on the instant land, etc. The sales contract (Evidence No. 3-3) dated March 11, 2002, prepared between the Plaintiff and the Plaintiff and the Plaintiff on March 11, 2002. The date of preparation of the sales contract for the instant land, etc. corresponds to the date of sale and purchase of the instant land as stated in the real estate registration register, and the remaining payment date (No. 203-2, March 26, 2003) is identical to the date of sale and purchase of the instant land, and the Plaintiff’s remaining payment date is not a lawful one of the 20-day owners of the instant construction contract, in light of the following facts:

② Under the sales contract dated March 11, 2002, the seller of the instant land, etc., sold the instant land, etc. to the Plaintiff for KRW 1,046,00,000,000. On the premise that the Plaintiff was paid KRW 50,000 as the down payment on March 11, 2002, which was the date of concluding the contract, and KRW 440,000,000 as part of the intermediate payment or the remainder on September 27, 2002, and KRW 556,00,000 as the remainder on March 26, 2003.

③ The Plaintiff asserted that on March 26, 2003, the National Federation of Fisheries Cooperatives set up a collateral security right and loaned KRW 700 million to the National Federation of Fisheries Cooperatives through KimB, and that the Plaintiff paid the instant land to XX construction through KimB. However, the details of evidence No. 2-1 to 13 alone do not reveal the reasons for payment.

④ After entering into a sales contract for the instant land on May 15, 2002, the Plaintiff claimed that from x Construction on May 15, 2002, the sum of KRW 100,000,000,000 and KRW 11,71,000,000,000,0000,000 for additional purchase on the same day, such as the down payment of KRW 10,000,000,000 for intermediate payment on July 5, 2002, and KRW 50,00,000,000,000 out of the remainder of September 27, 2002. However, in light of evidence No. 23 through 25, both evidence No. 23 through 25 were prepared between BB and the Plaintiff as an agent for the instant construction, it is difficult to recognize that the testimony or evidence No. 26, as the witness evidence No. 5-2 was insufficient solely before the fact finding.

2) Whether the payment to KimB is KRW 250 million or the sales approval work cost of KRW 267 million or the sales approval work cost of KRW 200 million is necessary

In full view of the statements in Gap evidence 3-1, Gap evidence 6-1, Eul evidence 6-2, and Eul evidence 21, and the purport of the whole pleadings in the testimony of Lee Dod witness of the first instance court, the plaintiff agreed on January 21, 2002 to purchase the land of this case from KimB, 1.5 billion won, an agent of KimB, for construction, to recognize the so-called sales approval work cost. The plaintiff paid 250 million won to KimB on April 30, 2002 as part of part of part of part of part of part of part of part of part of part of the land of this case is recognized.

However, the "necessary expenses to be deducted from the transfer value under Article 97 of the Income Tax Act" refers to the actual transaction price required for the acquisition of the assets, so in order to be recognized as necessary expenses, there should be a causal relationship with the acquisition of the assets as well as the actual payment of money.

However, in the instant case where KimB lacks evidence to acknowledge that the Plaintiff is a legitimate agent of XX Construction, the Plaintiff’s payment of KRW 250 million or the sales approval work cost cannot be deemed as the cost having causations with the acquisition of the instant land, and there is insufficient evidence to acknowledge that the said money is necessary expenses.

3) Sub-determination

Therefore, the instant disposition is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

The judgment of the first instance is justifiable. The appeal filed by the Plaintiff shall not be accepted.