Cho-2014-China-4256 ( December 03, 2014)

The disposition imposing capital gains tax on the land of this case as the conversion price shall be reasonable.

In light of the fact that the acquisition price of the land in this case is excessive compared to the transfer price, the acquisition price of the land in this case is unclear, and the disposition imposing capital gains tax on the basis of the conversion price based on the standard market price is not erroneous, in view of the fact that the acquisition price of the land in this case is not presented.

Article 96 of the Income Tax Act

The revocation of the disposition of revocation of imposition of capital gains tax by the District Court 2015Gudan5144

EK

N.N. Director

August 17, 2016

October 12, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Transfer Income Tax of 133,236,200 won (including additional taxes) for the Plaintiff on June 5, 2014, the Defendant paid to the Plaintiff on 2013

(2) The disposition of imposition shall be revoked.

1. Details of the disposition;

A. On September 16, 1996, the Plaintiff acquired and owned 1,412 square meters of HHH 899, HHH 899 (hereinafter “instant land”) from SS, and transferred the instant land to 360,000,000 won on June 13, 2013.

B. On August 31, 2013, when the Plaintiff reported the tax base and amount of capital gains tax for the transfer of the instant land to the Defendant for the year 2013, the Plaintiff calculated the transfer value at the above KRW 360,000,000 based on the actual transaction value, and calculated the acquisition value at the above KRW 350,000,000, and paid KRW 444,000, respectively.

C. The Defendant: (a) deemed that the acquisition value of the instant land is unclear; (b) calculated the tax base again by converting the acquisition value into the standard market price under Article 114(7) of the Income Tax Act, not the actual transaction value; (c) on June 5, 2014, the Defendant issued a revised and notified the Plaintiff of KRW 133,236,200 (including additional taxes) for the transfer income tax reverted to year 2013 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal on August 12, 2014, but the Tax Tribunal dismissed the said appeal on December 3, 2012.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 5, 7, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Recognition of real acquisition value

At the time of filing a transfer income tax return, the Defendant: (a) deemed that the acquisition value of the instant land, which was submitted by the Plaintiff at the time of filing a transfer income tax return, falls under a case where the actual acquisition value is unclear, and calculated the acquisition value as a conversion value rather than the actual transaction value; (b) determined that the said sales contract constitutes a case where the actual acquisition value is unclear; (c) however, the said sales contract misleads the Plaintiff, instead of the actual transaction value, and subsequently found the actual sales contract (Evidence A No. 4); and (d) purchased KRW 305,00,000 including the value of the instant land, from SS, the value of the trees located on the ground of the instant land from SS, which is a death penalty, to the value of the trees located on the ground, as stated in the said contract. In light of the market price at the time of the increase in the real estate speculation at the time of the acquisition of the instant land, even if the actual acquisition value of the Plaintiff’s assertion was confirmed, it should be revoked by unlawful and unlawful.

(2) Necessary expenses deduction

The Plaintiff disbursed KRW 49,00,000 to GaG on June 13, 2013 when raising the instant land. The amount was calculated as necessary expenses in calculating capital gains tax.

Although it should be deducted, the disposition of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Determination as to the assertion of recognition of real acquisition value

According to relevant Acts and subordinate statutes, the acquisition value in calculating capital gains tax shall be calculated based on the actual transaction example, appraisal value, or conversion value prescribed by Presidential Decree in cases where the actual transaction value at the time of acquisition is not verifiable. In addition, in calculating capital gains, the actual transaction value, which is the basis for calculating capital gains, means the actual amount of the transaction price in itself or at the time of transaction, rather than the general market value that reflects the objective exchange value (see, e.g., Supreme Court Decisions 97Nu629, Feb. 9, 199; 2006Du7171, Apr. 26, 2007).

According to the result of the appraisal by the appraiser Kim J, a sales contract (Evidence A No. 4) claiming that the Plaintiff was prepared at the time of the acquisition of the instant land was prepared in around 1996, which was the date of acquisition of the Plaintiff’s instant land, and there is no trace of writing and alteration, but the said sales contract does not constitute a shot

Even according to the contents of the contract, it is possible to make a voluntary preparation. In particular, even if the contents of the contract are stated as "30 million,00,000,000,000 won" and the down payment are stated as "30,000,000,000,000 won," it is difficult to believe that the transaction was made according to the contents of the contract because it is not correct and incomplete. The plaintiff does not prove at all the details of the purchase price and paid. The purchase and sale case of surrounding land (including evidence A through No. 10,428,00) submitted by the plaintiff is difficult to believe that the appraisal price at the time of the acquisition of the land of this case is 97,428,00,00 as a result of the market price entrustment with the appraiserCC by the court, and even if it is believed, it cannot be objectively viewed as a legitimate price, and thus, it is difficult to confirm the actual transaction price at the time of acquisition of the land of this case.

(2) Claim for necessary expense deduction

In a lawsuit seeking revocation of a disposition imposing income tax, the burden of proof on the tax base, which is the basis of taxation, is on the tax authority, and the tax base is deducted from necessary expenses, so the tax authority shall bear the burden of proof of income and necessary expenses, in principle. However, since most of the facts causing necessary expenses are in the sphere under the control of the taxpayer, and it is difficult for the tax authority to prove. Thus, if it is reasonable to allow the taxpayer to prove in consideration of difficulty in proof or equity between the parties, it accords with the concept of fairness (see, e.g., Supreme Court Decision 2006Du16137, Oct. 26, 2007).

However, each statement of Gap evidence Nos. 15 (a copy of passbook stating that the plaintiff transferred KRW 49,00,000 to the competentGG on June 13, 2013) and evidence Nos. 17-1 and 2 (a certificate in the name of the competentGG to the purport that the above money was paid at the cost of molding construction for the land in this case) of the plaintiff's submission is difficult to recognize that the above money was paid as necessary expenses for the plaintiff's assertion (the above sphereG does not have a model for molding business registration), and the plaintiff's above assertion is rejected.

3. Conclusion

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

partnership.