Early High Court Decision 201J 0432 ( October 15, 2012)

The disposition to apply the conversion price due to unclear acquisition price is legitimate.

Since the appraisal value claimed as acquisition value is merely a retroactive assessment value at the time of transfer with the point of time of price transfer, it cannot be viewed as acquisition value, it is legitimate to apply an unfair under-reported additional tax on the ground that the acquisition value of the conversion value is legitimate and reported as acquisition value on the balance sheet prepared by false declaration is a case of under-reported return

2012Guhap7906 Revocation of Disposition of Imposing capital gains tax

XX

Head of Ansan Tax Office

December 12, 2012

January 2, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of 000 won (including additional tax) against the Plaintiff on October 1, 2010 (the date of disposition is October 18, 2010) is revoked (the Plaintiff stated in the correction of the purport of the claim of this case and in the preparatory document of this case the date of disposition is October 18, 2010; the capital gains tax, including additional tax, is KRW 000,000,000 in total, including additional tax, by stating that the amount of capital gains tax, other than additional tax, is KRW 00,000,000,000,0000,000,000,000,000,000,00

1. Details of the disposition;

A.1) Around April 19, 1994, the Plaintiff acquired each of the instant land, namely, 00-2 00-2 1 m23 m23 m2 (hereinafter referred to as “1m2”) in Gyeyang-gu, Ansan-gu, Annyang-si, Annyang-si, and 200-1 m22.5 m2 (hereinafter referred to as “2m2 m2”) on November 23, 2001.

2) The Plaintiff newly constructed 190.41 square meters, 62.04 square meters, 302.81 square meters, 402.81 square meters, 101, 101, 201, 402, 402, 501, 501, 502, 502, 502, 601, 601, 202, 2032, 205 square meters, 205, 203 square meters, 205, 205, 205, 205, 30, 205, 205, 20, 205, 30, 205, 205, 20, 205, 205, 30, 205, 190, 190, 6,200, 6,000.

B. Around June 26, 2009, the Plaintiff entered into a sales contract with OO (hereinafter “OO”) to sell the instant land and building for KRW 000,000, and the registration of ownership transfer was completed on September 7, 2009 under O’s name (the instant land seems not to have yet been completed in the name of OO).

C. On November 30, 2009, the Plaintiff filed a preliminary return on the tax base of capital gains on the grounds that the transfer value of the instant land and building was KRW 000,000, and the acquisition value was KRW 000,000, to the Defendant.

D. As a result of the investigation into the Plaintiff, the Defendant calculated gains from transfer by deeming the acquisition value of the instant land and building as KRW 00,00, the converted value of the instant land and building pursuant to Article 114(7) of the Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same shall apply) and Article 176-2(1)1 and 176-2(2)1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 21934, Dec. 31, 2009; hereinafter the same shall apply) on the ground that the Plaintiff failed to submit a sales contract for the acquisition of the instant land, and documentary evidence as to the construction cost of the instant building, on the ground that the Plaintiff’s under-reported return of the tax base of capital gains tax by improper means, and calculated gains from transfer by adding the unjustly under-reported penalty tax amount to the Plaintiff on October 1, 2010.

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on January 14, 201, but was dismissed on March 15, 2012.

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, Gap evidence 4, and 5-1, 2, Gap evidence 6, Gap evidence 7-1, 2, Eul evidence 2-1, 2, Eul evidence 3, 4, 5, 6-1 through 12, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

1) Claim concerning the acquisition value of the instant land and buildings

The acquisition value of the instant land and buildings shall not be KRW 000, which is the conversion value, but shall be KRW 000, the appraisal value calculated by the Korea Appraisal Board at the Plaintiff’s request.

2) Claim on the application of an unfair underreported additional tax rate

Since the Plaintiff entered the acquisition value of the instant land and buildings at the time of the preliminary return of capital gains tax base in accordance with the standard balance sheet as of 2008, the Plaintiff cannot be deemed to have underreported the capital gains tax base by unjust means. Therefore, the amount of KRW 000 calculated by applying at least the unfair underreporting additional tax rate (40%) among the instant disposition, shall be reduced or corrected as KRW 000, which is calculated by applying the general underreporting additional tax rate (10%).

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) As to the allegation regarding the acquisition value of the instant land and building

Article 114 (7) of the Income Tax Act and Article 176-2 (1) 1, (2) and (3) of the Enforcement Decree of the same Act provide that where the transfer value or acquisition value is based on the actual transaction value, and there are no books, sales contracts, receipts or other evidential documents necessary to confirm the actual transaction value at the time of transfer or acquisition, or where there are no important parts in the books, sales contracts, receipts or other evidential documents necessary to confirm the actual transaction value at the time of acquisition, the transfer value or acquisition value may be determined or revised by the survey of transaction example, appraisal value, conversion value (referring to the actual transaction value, transaction example value, appraisal value or appraisal value converted pursuant to Article 176-2 (2) of the Enforcement Decree of the Income Tax Act) or the standard market value, etc. In such a case, where the transfer value or acquisition value is estimated or revised within three months before or after the transfer date or acquisition date, and there is no credibility or credibility of appraisal value (limited to those appraised by the appraisal corporation before or after the acquisition date of the relevant property within three months before the acquisition date or acquisition date.

However, according to Gap evidence No. 5-2, the appraisal value claimed by the plaintiff as the acquisition value of the land and building in this case is merely the value assessed by the Korea Appraisal Board on January 12, 201 at the plaintiff's request on January 12, 201 by the time point for the price of the building in this case as of July 20, 2009, and it cannot be deemed as the acquisition value. It is legitimate for the defendant to impose capital gains tax with the conversion price as the acquisition value under the above income tax law. Accordingly, this part of the plaintiff's assertion is without merit.

2) As to the assertion on the application of an unfair underreporting penalty rate

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of tax claims, the taxpayer's intention and negligence is not considered as administrative sanctions imposed in accordance with the law if the taxpayer violates the duty to report and pay taxes under the law without justifiable grounds.

As to the instant case, comprehensively taking account of the purport of the entire pleadings, evidence No. 1, evidence No. 1, evidence No. 7-1, evidence No. 7-2, and evidence No. 7-3, the Plaintiff’s value on the account books of the instant land and building is KRW 000 won on the standard balance sheet of 2006, KRW 000 on the standard balance sheet of 2007, and KRW 000 on the aggregate of KRW 000 on the standard balance sheet of 2008, and KRW 000 on the aggregate of KRW 00 and KRW 00 on the standard balance sheet of 2008. The Plaintiff may recognize the fact that the acquisition value of the instant land and building was the value on the standard comparison comparison with that on the standard comparison table of 208, the Plaintiff did not present the standard balance sheet of 208 and the value of the instant building on the standard balance sheet of 208.

Therefore, the Plaintiff underreporting the transfer income tax base by falsely proving or falsely preparing a false document under Article 27(2)2 of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 23592, Feb. 2, 2012). Thus, it is legitimate for the Defendant to determine the transfer income tax by adding the additional tax on negligent tax returns applying an unfair under-reported additional tax rate pursuant to Article 47-3(2)1 of the Framework Act on National Taxes (amended by Act No. 11124, Dec. 31, 2011). This part of the Plaintiff’s assertion is without merit (the Plaintiff cannot be deemed as the acquisition value in calculating the transfer income tax in any case, since the acquisition value in the account book of transferred assets cannot be recognized as the acquisition value in calculating the transfer income tax, the Plaintiff’s assertion that the acquisition value of the land and building in this case, which was written on the standard balance sheet of 2008 at the time of the preliminary return of transfer income tax base, can not be acknowledged as the acquisition value in the account book.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.