Daejeon District Court 2009Guhap2315 ( November 11, 2009)

Cho Jae-chul209 Before 269 (209.05.01)

Whether the transfer value of the sale right is long or long

The transfer value claimed by the tax authority is legitimate on the grounds that there is no reason to prepare a harden contract if the transfer margin of the right to sell is not created.

The contents of the decision shall be the same as attached.

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

1. Purport of claim

"The defendant revoked the disposition of capital gains tax imposed on the plaintiff on January 5, 2009 (the date on which the disposition was notified)" (the defendant revoked the disposition of capital gains tax of KRW 13,743,072 as a result of the correction of reduction when he was first imposed a disposition of KRW 72,91,660, but the defendant was found to have reached the judgment of the court of appeal)" and the purport of appeal 2.

The same shall apply to the order.

1. Details of the disposition;

A. On March 7, 2003, the Plaintiff acquired the right to sell the instant land (hereinafter referred to as “instant right to sell the land”) on the site 407.8 square meters of Daejeon Seo-dong DD 892-5, Daejeon (123.4, hereinafter referred to as “instant land”) from KimCC, and transferred the instant right to sell the land to KimA on August 22, 2003, and KimA transferred the instant right to sell the land to a third party on February 29, 2008.

B. The principal of the sale price of the instant land is KRW 265,00,000, and the remainder of the sale price except the down payment is paid in 10 installments. The remainder of the sale price remaining at the time the Plaintiff acquired the instant sale right from KimCC is KRW 166,60,000 in total on seven occasions, and the remainder of the sale price remaining at the time the Plaintiff transferred the instant sale right to KimA is KRW 142,80,000 in total on six occasions.

C. On September 27, 2003, after transferring the instant sales right to KimA, the Plaintiff acquired the instant sales right to KRW 132,040,000, and filed a preliminary return of capital gains tax for KRW 142,860,850 on September 27, 2003. On the other hand, KimA transferred the instant sales right to a third party after transferring the instant sales right to KRW 453,00,000 on March 21, 2008, and subsequently transferred the instant sales right to KRW 453,00,000.

D. On January 5, 2009, the Defendant: (a) deemed that the Plaintiff acquired the instant sales right of this case in KRW 364,595,00 (including KRW 142,80,000 for the remainder of Korea) and transferred it to KRW 49,770,00 (including KRW 142,80,00 for the remainder of the sales price obligation); and (b) calculated gains on transfer as KRW 135,175,00; and (c) issued a disposition imposing capital gains tax of KRW 72,91,660 for the year 203 (hereinafter “instant disposition”). Based on this, the Defendant issued a disposition imposing capital gains tax of KRW 72,91,660 for the Plaintiff (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on February 25, 2009, and the Tax Tribunal dismissed the appeal on May 1, 2009.

F. On January 12, 2010, the Defendant considered that the Plaintiff acquired the instant sales right of KRW 388,395,000 (including KRW 166,60,000,000 (in case of South Korea, including KRW 142,80,000) and transferred it to 49,770,000 (in case of sale price obligations for South Korea, including KRW 142,80,00), and calculated gains on transfer as KRW 109,375,00, and accordingly, revoked the imposition of KRW 13,743,072 of the instant disposition.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 through 7, 10 through 14 (including the number of branches), the testimony of the witness KimA of the first instance court, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff acquired the sales right of this case from KimCC to KRW 364,595,00 (=221,795,000 + the remainder of KRW 142,80,000 + the remainder of KRW 142,80,00) and transferred the sales right of this case to KimA (=214,170,000 + the remainder of KRW 142,800 + the remainder of KRW 142,800) and there is no transfer margin. Nevertheless, the Defendant deemed that the Plaintiff transferred the sales right of this case to KimA (=356,970,000 + the remainder of KRW 142,80,000) and thus, the instant disposition was unlawful.

B. Key issue of the instant case

As to the Plaintiff’s assertion, the Defendant asserted that the instant disposition that was calculated and imposed on the basis of the Plaintiff’s right to parcel out was lawful, since the Plaintiff acquired the instant right to parcel out KRW 388,395,00 from KimCC (=221,795,00 + KRW 166,60,000 + the remainder sales price obligation) and transferred to KimA KRW 499,770,000 (= + KRW 356,970,000 + the remainder sales price obligation + KRW 142,80,000).

Therefore, the key issue of the instant case is whether the Plaintiff’s transfer of the instant sales right to KimA (i.e., KRW 214,170,000 + KRW 142,80,000) or whether the remaining sales price plus KRW 49,770,00 (= KRW 356,970,000 + the remaining sales price + KRW 142,80,000).

C. Determination

In light of the following circumstances: (a) the Plaintiff’s transfer price of this case to KimA is KRW 49,770,00,00 as alleged by the Defendant (i.e., KRW 356,970,000 + the remainder sale price obligation of KRW 142,80,000; (b) the testimony of the witness evidence Nos. 3, 8, and 152,80,000 is insufficient to reverse the recognition.

① The KimA, who acquired the sales right of this case, asserts that he acquired the sales right of this case by calculating KRW 4,050,000 per square day of the land in this case, and then multiplying the land in this case by KRW 4,050,000 per square day of 123.4 square day converted from the land in this case by KRW 49,700 per square day.

② According to the special terms and conditions of the sales contract (No. 3) with respect to the right to sell this case between the Plaintiff and KimA, if interest, etc. exists by September 16, 2003, which is the outstanding payment date of the purchase price for the right to sell this case, the Plaintiff, the seller, and the Plaintiff, who is the seller, bears the obligation of 142,80,000 won of the remainder of the sale price to be paid to the Korea Land Corporation in the future, and the purchaser, Kim A, who takes over the remainder of the sale price, has no reason to actually pay the Plaintiff the remainder of the sale price to the effect that KimA takes over by the buyer, the buyer, and there is no reason to believe that the Plaintiff shall pay the remainder of the sale price at once on the outstanding payment date for the remainder of the sale price. ③ The purport of the sale contract (No. 3) with respect to the right to sell this case, which is prepared between the Plaintiff and the Plaintiff on the same day as the sale contract (No. 2-3) as the special terms and conditions of the Plaintiff’s right to sell 1080.

④ The KimA paid to the Plaintiff KRW 50,00,000 on August 22, 2003, in accordance with the sales contract (Evidence No. 3) regarding the sale right of this case. On August 28, 2003, KimA paid KRW 150,000 as the intermediate payment. In addition, on September 16, 2003, the remainder of KRW 156,970,000, in cash at Daejeon, which was the payment date of KRW 156,970,00,000, the remainder of KRW 156,90,000, in cash, was collected from Daejeon, which is the actual payment date of KRW 156,970,00. This is almost consistent with the KRW 499,770,000,00 that

⑤ If the remainder of KRW 142,80,000, which remains 156,970,000 as the Plaintiff’s assertion, includes the remainder of KRW 142,80,000, which remains 6 times in total, is merely 14,700,000 (=156,970,8000 - 142,80,0000) that is actually paid by KimA, and thus, it goes against general transaction practices, by comparing the remainder of KRW 50,00 with the intermediate payment of KRW 150,00,00,000.

(6) The reason is that KimA paid a balance at the Korea Land Corporation Office, which was not the BBA brokerage office on September 16, 2003, due to the change in the name of the sale right of this case, KimA would not have to receive a receipt for the balance.

Therefore, the defendant's disposition of this case is legitimate, and the prior plaintiff's assertion is without merit on the premise that the plaintiff's right to sell this case was transferred to KimA (i.e., KRW 356,970,000 + the remaining obligation of KRW 142,80,000).

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is unfair with its conclusion, and it is so revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.