In the event that the comprehensive income tax is imposed on the profits from debt exemption, the burden of proof for the existence of the fact of debt exemption lies on the tax authority.

In the event that the comprehensive income tax is imposed on the profits from debt exemption, the tax authority has the burden of proving the existence of debt exemption, and in this case, it is insufficient to recognize the fact of debt exemption.

Article 51 (Calculation of Total Amount of Income)

Article 11 of the Enforcement Decree of the Corporate Tax Act

2016Guhap637 Disposition of revocation of imposition of global income tax, etc.

Park ○ and three others

○ Head of tax office

October 27, 2016

December 22, 2016

1. On July 1, 2015, the Defendant: (a) revoked the disposition imposing KRW 266,840,570, and KRW 173,926,630, and KRW 340,113,370, and KRW 28,597,8770, imposed on Plaintiff ○○○○○ Partners for the year 2013, which belonged to the year 2013; and (b) revoked the disposition imposing the global income tax for the year 2013, which belonged to the year 2013, imposed on Plaintiff ○○○○○ Partnership.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

가. 원고 박○○, 정○○는 부부이고, 원고 김○○는 원고 정○○의 모이며, 원고 주식회사 ○○○○○○파트너스(이하 '원고 회사'라고 한다)는 2010. 12. 9. 부동산 매매 및 임대업 등을 영위하기 위해 설립된 회사이다. 주식회사 ☆☆☆☆☆(이하 '소외 시행사'라고 한다)는 ○○ ○○구 ○○동 ○○번지 AAA AAA 복합상가(이하 '이 사건 건물'라고 한다)를 신축하여 분양한 회사이다.

B. Around September 16, 2009, the non-party developer commenced the new construction of the instant building with BB as the contractor, and the plaintiffs sold or acquired the right to sell a part of the instant building from the non-party developer to a third party, and the instant commercial building was completed on or around June 201.

C. From June 19, 2014 to July 18, 2014, the Defendant conducted an investigation with respect to a non-party executor, and as a result, confirmed that the non-party executor accounts for KRW 5,231,914,240, including the outstanding amount of sales in lots against the Plaintiffs at the time of filing a corporate tax return for the business year 2013, the non-party executor confirmed that he/she accounts for KRW 2,960,990,755 as the claim reduction loss. The Defendant notified the non-party executor of the tax investigation on July 28, 2014, deeming that the non-party executor has obtained the Plaintiffs’ exemption profit by giving up the outstanding amount of sales in lots to the Plaintiffs, and that the Plaintiff’s company would rectify and notify the Plaintiff’s corporate tax for the business year 2013.

D. The Plaintiffs filed a request for review of the legality before taxation, and the Defendant rendered a re-audit on October 14, 2014, and accordingly, conducted re-audits between October 28, 2014 and November 8, 2014.

E. On July 1, 2015, the Defendant: (a) added the gains from the waiver of the obligation due to the waiver of the obligation due to the non-party’s outstanding receivables at the time of the event to the amount of income, etc.; (b) added the comprehensive income tax on the Plaintiff Park ○, Jeong○, and Kim○ in 2013; and (c) subsequently corrected and notified the corporate tax on the Plaintiff Company in 2013 (hereinafter “instant disposition”).

F. The Plaintiffs are dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on September 1, 2015.

However, on December 4, 2015, there was a decision to dismiss a petition for trial.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 1 to 5

the purpose of each entry, as a whole, of the entire pleadings, including branch numbers

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

1) Although the non-party implementer commenced the sale of the instant building at the same time with the commencement of the new construction of the building, in order to pay the intermediate payments for the construction of the building, the sales contract was concluded by the non-party implementer, who is the shareholder of the non-party implementer, to receive loans from each financial institution at the time of entering into the sales contract and transfer of ownership. The sales contract entered into a verbal agreement to sell at discount commercial buildings. The contract entered the sales price before discount to obtain the maximum amount of loans, and the plaintiffs completed the registration of ownership transfer by fully paying the sales price in accordance with the above oral agreement. The claim for the outstanding amount against the plaintiffs remaining in the accounts of the non-party implementer was merely the remainder of the sales contract. Since the outstanding amount claims against the plaintiffs in the event of the non-party implementer did not exist, the non-party implementer was exempted from the obligations against the plaintiffs in the business year 2013, and thus,

2) The Plaintiff 1, 200, 200, 200, 200, 2000, 2000, 2000, 2000, and 300,000,000,000,000,000,000,000,000,000,000,00

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Facts of recognition

The following facts are acknowledged in full view of each evidence mentioned above, witness witness witness witness witness witness testimony, and the purport of the entire pleadings.

1) The Plaintiff Park○-○ and Jeong-○ is a shareholder holding 30% of the total number of outstanding shares at the time of the establishment of the non-party’s exercise. Around March 2013, when filing a corporate tax for the exercise of the non-party’s corporate tax, the Plaintiff prepared a sales contract for all of the above shares as of December 20, 2012 retroactively, and received all of the sales proceeds of the above shares on April 20, 2014. Meanwhile, the RedCC is a representative director at the exercise of the non-party’s exercise, who holds 40% of the total number of

2) The sales details and discount amount of the commercial buildings related to the disposition of this case among the commercial buildings for which the plaintiffs acquired the sale or resale are indicated in the following table:

Table Omission of the Table

3) The details of the Plaintiff’s business operation of real estate leasing business, etc. at the place of business, which is related to the instant disposition among the instant buildings by the Plaintiff’s Park○, Jeong○, and Kim○, are as follows.

4) Even after the Plaintiffs completed the registration of transfer of ownership with respect to each corresponding number of commercial buildings in the instant building, there was an outstanding claim against the Plaintiffs on the accounting of the instant commercial buildings in the instant case, and the Nonparty executor accounts for KRW 5,231,914,240, including the outstanding claim for sale to the Plaintiffs when filing a corporate tax return in 2013, including KRW 2,960,990,755.

5) As seen earlier, the Defendant issued the instant disposition by deeming that the Nonparty’s executor renounced the outstanding claim against the Plaintiffs by giving up the outstanding claim against the Plaintiffs, following the investigation, reexamination, etc. with respect to the Nonparty’s executor, and that the Plaintiffs obtained the benefits of debt exemption.

D. Determination

In light of the following facts and circumstances, the aforementioned facts are as follows: (a) the event of Nonparty 1 and the Plaintiff 1 and the Plaintiff 2 had a special relationship; (b) even after the completion of the instant building, there was a claim for the outstanding amount against the Plaintiffs on the accounts at the time of the event of Nonparty 2; (c) the Nonparty 1 and 3 accounts for the amount of loss from the reduction of claim; and (d) the fact that the Nonparty 6-1 and 3 accounts for the amount of the outstanding claim against the Plaintiffs in the event of Nonparty 2013 as a loss from the reduction of claim; and (c) the fact that the Nonparty 6-1 and 3 accounts for the amount of the outstanding claim against the Plaintiffs in the event of Nonparty 2013 as a result of accounting for the amount of loss from the reduction of claim, it is insufficient to recognize that the Nonparty 2 waived waived waived

① Although the construction of the instant building was conducted after the commencement of the construction, it appears that it was difficult for Nonparty 1 to pay the construction cost, etc. for the construction works because a large number of commercial buildings were not sold, and in such circumstance, Nonparty 1 had the motive to discount the sale price in order to sell commercial buildings to the Plaintiffs in a special relationship with or related to business, and to receive loans from the financial institution and to use them for the payment

② After entering into a discount sale agreement, Nonparty 1 and the Plaintiffs entered the sales price at discounted prices in preparing the sales contract. This is the basis for calculating loans by financial institutions, so it was intended to receive the maximum amount of loans to cover construction price, etc., and if the sales price is set in the sales contract, it would be to block the possibility of selling to a third party at a higher price in the future.

③ There are many buyers who seem to have been sold at a discounted rate similar to the plaintiffs among the buyers who bought the instant commercial building from the Nonparty developer. While there are several buyers who have not been sold at a discounted rate among the buyers, this seems to result from the Nonparty developer’s individual negotiation without notifying other buyers of the discounted selling price, taking into account various circumstances, such as the economic power and activeness of the buyer.

④ After completion of the instant building, Nonparty 1 appears to have failed to take measures to preserve the outstanding amount receivable, such as the registration of the establishment of a neighboring mortgage, while completing each registration of the transfer of ownership with respect to the instant building related to the instant disposition, and there seems to be no fact that Nonparty 1 took other measures to preserve claims against the Plaintiffs, such as peremptory notice of claims against the Plaintiffs.

⑤ The Defendant asserted that, as the Plaintiff Park ○○ and Park Jong-○ had acquired the instant 105 and 107 units of the instant building through the resale of the right to sell each of the instant building 403 and 404, the Plaintiff could not enter into a discount agreement at the time of entering into the sales contract. However, it cannot be ruled out that the Plaintiff’s event and each of the aforementioned retailers were the possibility of having entered into a discount agreement at the beginning. The Plaintiff Park ○ and Jung-○ did not know of the fact of sales discount while entering into another sales contract in the existing commercial building, and the Plaintiff Kim ○ was also deemed to have known of the fact of sales discount through the Plaintiff Park○ and Jung-○○ at the time of the resale of each of the above sales rights. As such, it is probable that the same agreement as the sales discount agreement of other commercial buildings at the time of

(6) The purpose of the discount rate of the buyers who received a discount, including the Plaintiffs, was that the conditions for the sale in lots and the transfer of ownership in the commercial building were the total amount of loans that can be received from each financial institution at the time of the sale in lots and the transfer of ownership in the commercial building. It appears that the rate of loans to be changed depending on the individual’s credit rating. Even though the method of determining the sale price between the non-party’s exercise and the Plaintiffs was different from the method of determining the sale price in lots, it appears that the said method was due to a special relationship between the non-party’s exercise and the plaintiff’s Park-○, and Jung-○, etc., and that such special relationship was affected by the sale

7) On May 8, 2015, Plaintiff Kim ○○ reported the transfer income tax after transferring the instant commercial building 403 on May 8, 2015, it is recognized that: (a) a request for correction was made based on the sale price before the discount on the acquisition price was made on September 9, 2015; and (b) a correction was made accordingly; (c) it appears that the Defendant’s disposition rendered on July 1, 2015, on the other hand, the global income tax was imposed on the considerable portion of the discounted amount; and (d) on the other hand, it appears that the Plaintiff’s request for

(8) In light of the above facts and circumstances, when entering into a sales contract for commercial buildings related to the disposition of this case among the buildings of this case, or when entering into a sales contract with a pre-sale purchaser, there was an agreement to pay the total amount of loans the plaintiffs can receive from each financial institution after the sales contract and transfer of ownership without paying the sales price stated in the sales contract. It is reasonable to deem that the Plaintiffs paid all the sales price agreed by the financial institution around the completion of each registration of ownership transfer pursuant to the above agreement to the non-party executor.

3. Conclusion

Thus, since the plaintiffs' claims are well-grounded, it is decided to accept all of them as per Disposition.

shall be ruled.