Seocho 2014west 3127 ( October 20, 2014)

The acquisition value shall be calculated based on the actual transaction value required for the acquisition of assets.

The revised return submitted a sales contract while submitting the plaintiff's seal, and the plaintiff's seal is affixed to this contract, and there is no evidence to deem that the purchase price of the contract is obviously false, so the actual transaction price at the time of acquisition is unclear and thus the acquisition price is to be calculated based

Article 97 of the Income Tax Act as necessary expenses

2015Gudan557 Revocation of Disposition of Imposing capital gains tax

KimA

Head of Yeongdeungpo Tax Office

2015.06.17

2015.17

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition on November 2, 2013 on the imposition of OO(including additional tax) for the transfer income tax belonging to the year 2007 against the Plaintiff is revoked.

1. Details of the disposition;

A. On May 31, 1971, the Plaintiff acquired O-O site and above-ground buildings (hereinafter “the first real estate of this case”), on November 19, 2004, O-O-O site and above-ground buildings (hereinafter “the second real estate of this case”) by O-O-O site and above-ground buildings (hereinafter “O-O-O site”) and transferred on April 24, 2007.

B. On June 28, 2007, the Plaintiff calculated the transfer value of real estate Nos. 1 and 2 of the instant case as the actual transaction value OO won (=OOwon of the instant 1 real estate + OOwon of the instant 2 real estate) and the conversion value of acquisition value (=Owon of the instant 1 real estate + OOwon of the instant 2 real estate + the instant 2 real estate) and scheduled the return of the transfer income tax OOO won.

C. However, on August 13, 2007, the Plaintiff asserted that the acquisition value of the second real estate of this case is an OO won in the actual transaction value, and filed a request for correction on September 12, 2007, when submitting a sales contract in which the purchase price was stated as an OO won (hereinafter “first contract”), and withdrawn the above request for correction on September 12, 2007. On the same day, the Plaintiff asserted that the acquisition value of the second real estate of this case is an OO won in the actual transaction value, and submitted a sales contract in which the purchase price was stated as an OO won in the actual transaction value, and paid an OO won in addition, after filing a revised return.

D. On November 2, 2013, the Defendant decided and notified the Plaintiff on November 2, 2013 that the transfer value of the instant real estate Nos. 1 and 2 is OO won, and that the acquisition value of the instant real estate Nos. 1 and 2 is OO won (i.e., the conversion value of the instant real estate No. 1 + OO won in the actual transaction value of the instant real estate No. 2) additional payment of the transfer income tax for the year 2007 (including additional OO won of the additional tax for failing to file a report and the additional additional OO won) (hereinafter referred to as the “disposition”).

E. The Plaintiff underwent the pre-trial procedure.

[Ground of recognition] Facts without dispute, Gap 1, 10, 12 evidence, Eul 1 and 4 evidence (including provisional number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The second real estate of this case was not acquired by the Plaintiff through the sale from the ChoCC, and was transferred the ownership by requesting the Plaintiff to repay the loans to the Plaintiff and the obligations to the creditors in lieu of the obligations to the creditors beyond the second real estate of this case. The first contract was unilaterally prepared by the certified judicial scrivener office for the transfer of registration, and the second contract was prepared by KimD, who made the preliminary return of transfer income tax, on behalf of the Plaintiff, voluntarily prepared and falsely prepared. Accordingly, the second real estate of this case was determined as the conversion acquisition value as the OOO on the ground that it was impossible to verify the actual transaction value at the time of acquisition. The Defendant’s disposition of this case based on the different premise is unlawful.

B. Determination

(1) Article 97 of the former Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007; hereinafter the same) provides for the acquisition value as one of the necessary expenses to be deducted from the transfer value in calculating transfer income. The acquisition value shall be the actual transaction value required for the acquisition of assets. In case where the actual transaction value cannot be confirmed at the time of acquisition, it shall be the transaction example value, appraisal value or conversion value as prescribed by the Presidential Decree. Article 114 of the Income Tax Act provides that where there are omissions or errors in the return of transfer income tax, the head of the district tax office having jurisdiction over the place of tax payment shall correct the transfer income tax and the tax amount on the actual transaction value, and where it is impossible to recognize or confirm the actual transaction value at the time of acquisition of the assets by books or other documentary evidence due to the reasons as prescribed by the Presidential Decree, the acquisition value may

Meanwhile, considering that the burden of proof of the tax base, which is the basis of taxation in a lawsuit seeking revocation of taxation, is within the tax authority, but most necessary expenses are favorable to the taxpayer, and that it is easy to prove the necessary expenses is located within the territory under the control of the taxpayer, it is consistent with the concept of fairness to recognize the necessity of proof to the taxpayer by allowing presumption of non-existence as to the necessary expenses for which the taxpayer does not perform the duty of proof (see Supreme Court Decision 2002Du1588, Sept. 23, 2004). If it is proved that the facts alleged in light of the empirical rule in the specific litigation process are proved, it cannot be readily concluded that the other party is an illegal disposition that fails to meet the requirements of taxation, unless it proves that the facts at issue are not eligible for the application of the empirical rule (see Supreme Court Decision 2003Du14284, Apr. 27, 2004).

(2) Considering the following circumstances, Gap 4, 6, 11, 12, Eul 3, and 4 as well as the overall purport of pleadings, the plaintiff filed a revised return of capital gains tax, and the second contract, and the purchase price in the first contract is determined as an amount equivalent to the standard market price. However, although the plaintiff asserted that the purchase price in the second contract is determined as an OD’s own discretion, it is difficult to readily believe the plaintiff’s assertion on the grounds that the first contract and the second contract were written in the name of the OCC 2, including the fact that the OCC 2, which were written in the name of the OCC 3, and that the OCC 2, which were written in the name of the OE 2, were insufficient, and that the OCC 2, which was written in the name of the OCC 1, 3, and that the OCC 2, which was written in the name of the OCC 1, 204.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.