Seoul Administrative Court-2017-Gu Partnership-6586 ( August 27, 2018)

Cho High-2016-Seoul Government-3600 (2017.03.02)

Justifiable grounds for transaction practices concerning the transfer of low price of land between non-specially related persons;

It is reasonable to view that there is "justifiable reasons in light of the practice of trading" in a case where there is a reasonable reason to believe that the parties to the transaction who have transferred or acquired property at a low price had properly reflected the transaction price at a normal price which is properly reflected in the objective exchange value, or there is an objective reason that cannot be viewed as being abnormal from a reasonable economic person

Article 26 of the Inheritance Tax and Gift Tax Act (Method of Calculating Benefits Following Transfer of Low or High Price)

Seoul High Court 2018Nu61927

AA

BB Director of the Tax Office

Seoul Administrative Court 2017Guhap6586

November 14, 2018

November 28, 2018

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of gift tax of KRW 18,616,220 and penalty tax of KRW 7,643,820 against the Plaintiff on March 2, 2016 shall be revoked.

1. Quotation, etc. of judgment in the first instance;

The reasoning of this court's judgment is as follows, except for the modification or addition of the corresponding part of the judgment of the court of first instance as follows 2, and as stated in the reasoning of the judgment of the court of first instance, it is consistent with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Revised parts

○ Revision to December 31, 2013, 2012, hereinafter referred to as “ December 31, 2013,” two below the two pages:

○ 3. The purchase of “the three pages” shall be read as “the purchase”, “the three pages” shall be read as “the three pages,” and “the three pages” shall be read as “the two pages,” respectively), and on December 2, 2013.

31. The registration of ownership transfer of the land of this case shall be completed by reason of the sale in this case.

Amendment

○ up to the 4th 9th 9th 9th 'DD' to the 4th 10th 'D'

the same business relationship; and

○ 4. The Plaintiff participated in the 11th session “participating,” and as the spouse of DD, is the CCC.

The distribution of profits arising from the joint projects of DD and amendments thereto

○ 4 12 mal. “Shares of the instant land” shall be amended to “the instant land”

○ 10 up to 10 10 'not' up to 10 'land' up to 10 'land':

In order to manage and sell land and buildings on which CCC and the Plaintiff’s husband obtained 3,33-1, 33-12 land and buildings on its ground, the CCC borrowed 1.6 billion won from DD and paid DD 1.6 billion won with full payment, and it actually attempted to enter into a trade agreement with DD to pay D 50% of the remaining amount after deducting all kinds of expenses and taxes from the total purchase price. However, DD failed to raise the above funds, and between CCC and DD on July 17, 2013.

○ 10 4 10 pages "a service bond, success fee, etc." shall be amended to "a fee of KRW 200 million".

○ 10 and below 6-7 conduct “CCC” from 10 to 2 others, i.e., “CCC”.

Revisions as follows:

“It is reasonable to deem that there was no reasonable ground to believe the transaction price of the instant land at a normal price that properly reflects its objective exchange value, or that the CCC has given considerable proof to the extent that the transfer of the instant land at the market price was an abnormal transaction from a reasonable economic person’s perspective, and the evidence submitted by the Plaintiff alone is insufficient to deem that there is a special reason to deem that there is a normal transaction.”

○ 11. To revise “the co-ownership shares of the instant land” as “the instant land”

○ 11 Up to 11 up to 3 others under the following modifications:

“AcCC recruited investors, including the Plaintiff, in order to secure funds to purchase the previous land. EE, which is the land of the CCC, invested KRW 50 million in advance by the Plaintiff, and FF, the Plaintiff’s son, and FF. After August 19, 2013, the CCC paid the remainder of the purchase price of the previous land to GG Trust Co., Ltd., and after August 19, 2013, HH’s employee HH invested KRW 520,000,000 and 600,000,000 won to the CCC. However, the Plaintiff invested 150,000,000 won to the CCC, and thus, it is merely a relatively small amount of investment compared to the other PCC investors.

④ The Plaintiff purchased 11-11 land from CCC as a unit area of 635,243 won per unit area (per unit area) (this is almost similar to 635,359 won, which is the purchase price per unit area of HH, JJ, and EE, other selective investors) on the date of acquiring the instant land. However, since the instant land is adjacent to the general public, unlike the land purchased by the 11-11 or other selective investors, it can be anticipated that the market price is much higher than 11-11 land. Nevertheless, the Plaintiff purchased the instant land from CCC as a unit area of 617,435 won, rather than the said 11-11 land.

⑤ According to the “real estate advisory and service contract entered into with CCC, the Plaintiff’s husband (CCC) appears to have been paid the success fee of KRW 200 million from CCC. However, CCC, compared to other prior investors, transferred 11-11 land to the Plaintiff, the investment amount of which is less than that of other prior investors, and further, it is difficult to view that the transfer of the instant land to the lower price is normal from a reasonable economic perspective (as to the Defendant’s tax investigation (Evidence B). According to the CCC’s written questioning about the Defendant’s tax investigation (Evidence B), it explained that CCC would sell at the price calculated by adding a little profit to the acquisition value of the previous land in addition to the acquisition value of the previous land after acquiring the previous land in the process of public sale).

6) The Plaintiff asserted that DD was a partner of CCC while denying that DD was in fact in a partnership with CCC, and that DD was actually a partner with CCC and that DD was acquired at the lower price for the purpose of obtaining profit distribution from CCC’s joint business as the Plaintiff’s spouse as DD spouse. However, even if all the evidence submitted by the Plaintiff were integrated, there is no objective material to clearly ascertain how CCC and DD were in a partnership with the content of the business, how profit distribution was calculated or not, and how it was considered in calculating the transaction price of the land in this case.”

3. Supplement and addition of judgments;

A. The Plaintiff asserts that the disposition of this case, which calculated the market price of the land of this case on the basis of comparative land, does not constitute "other similar properties" with the land of this case, is unlawful.

As judged in the judgment of the first instance court cited by this Court, it is reasonable to view that the comparative land is identical with or similar to the land in this case and its location, use, standard market price, and appraisal value, and that the sales price concluded on November 13, 2013 regarding the comparative land can be recognized as the market price of the land in this case. The Plaintiff’s assertion on a different premise is without merit.

B. The Plaintiff also asserts that according to the amended Enforcement Decree of the Inheritance Tax and Gift Tax Act, the appraisal report prepared in excess of six months before or after the evaluation base date (three months for donated property) cannot be used as the market price retroactively. In light of its purport, the Plaintiff asserts that the appraisal report cannot be used as the basis for “the retroactive appraisal value of the K KR and the LL appraisal corporation prepared around December 2015,” without justifiable grounds.

On the other hand, as the judgment of the first instance court cited by this court, the above appraisal value is not intended to determine the market price of the land of this case, but it is used as one material to determine whether there is a justifiable reason in light of the transaction practices in the transaction decision of this case. Thus, it cannot be said that it violates Article 49(1) and (2) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act. The plaintiff's assertion on a different premise is without merit.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the first instance court with the same conclusion is just, and the plaintiff's appeal is dismissed as it is without merit.