early 2010 Heavy3868 ( October 20, 2011)

The disposition that calculates the transfer margin based on the standard market price is lawful because the actual transaction price of the exchange contract cannot be confirmed.

There is no evidence to acknowledge that the transferor has performed the value exchange based on the objective value assessment of the object subject to exchange, and even though the transferor reported the transfer value based on the actual transaction price under the exchange contract, it cannot be recognized as the actual transaction price, the disposition that calculated the transfer margin based on the standard

2013Gudan1205 Revocation of Disposition of Imposing capital gains tax

leapAAA

Head of Sungnam Tax Office

April 24, 2013

May 15, 2013

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 KRW 000 for the year 2005 against the Plaintiff on September 16, 2009 shall be revoked.

1. Details of the disposition;

A. On April 30, 2004, the Plaintiff acquired and owned 000,000,0000,06.3 square meters of 309.12 square meters of Odong-dong-dong-dong-si, Seongdong-gu, Sungnam-si, and 206.3 square meters of 309.12 square meters of 309 square meters of residential facilities and housing (hereinafter “each of the instant real property”). On April 19, 2005, the Plaintiff entered into an exchange contract with OOOO-dong 000 OO-dong 000 OO-dong 000 OO-dong 761 square meters of area) to exchange the right of lease on each of the instant real property (hereinafter “the instant exchange contract”) and completed on May 9, 2005 according to the above exchange contract.

B. On June 1, 2005, the Plaintiff filed a preliminary return on each of the transfer income tax bases by stating the acquisition value as 000 won in the actual transaction value, and the transfer value as 000 won in the actual transaction value.

C. On August 31, 2006, the Defendant conducted a tax investigation, confirmed the fact that ParkO reported the transfer income tax base by stating the actual acquisition value of each real estate of this case as 000 won, and recognized the above 00 won as the actual transaction value at the time of transfer of each real estate of this case and calculated the transfer margin, and corrected and notified the Plaintiff of the transfer income tax of 000 won for the year 2005.

D. On November 10, 201, the Plaintiff filed an objection and filed an appeal with the Tax Tribunal on November 10, 201, and on July 20, 201, the Tax Tribunal rendered a decision that the instant exchange contract is a mere exchange contract that is not accompanied by the settlement procedure, and that the actual transfer value of each real estate of the instant case is not verified, and that the tax base and tax amount are corrected.

E. In accordance with the above decision of the Tax Tribunal, the Defendant calculated the acquisition value and transfer value based on the standard market price, and revised the said transfer income tax on August 8, 201 by reducing the Plaintiff’s said transfer income tax to KRW 000 (hereinafter “instant disposition”).

[Based on Recognition] The non-speed facts, evidence 1, evidence 2, evidence 1, evidence 3, evidence 1, 2, evidence 6, evidence 7, evidence 1, 2, and 1, and evidence 2, and evidence 3 through 5, respectively.

2. Whether the measure of this case was adopted

A. The plaintiff's assertion

Although the acquisition value of each real estate of this case shall be KRW 000 in actual transaction value, and the transfer value shall be KRW 000 in the appraisal value around April 2005 based on retroactive appraisal, the defendant calculated the acquisition value and transfer value according to the standard market price, and then the disposition of this case is unlawful, and the disposition of this case against the plaintiff by the defendant is unlawful.

B. Relevant statutes

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

C. Determination

1) The actual transfer value of the relevant asset, which serves as the basis for calculating the transfer income tax, refers to the value of the asset at the time of the transaction, which is objectively recognized by the sales contract or other documentary evidence. Thus, in case where the transaction is exchanged, the actual transfer value may be verified if the value of the object is a value exchange based on the objective monetary value due to the difference in the appraisal value following the procedure for settling accounts for the object to be exchanged, but if the difference is determined by the agreement between the parties without the above procedure, the actual transfer value cannot be confirmed if the difference between the value of the object to be exchanged is determined by the method of paying the difference. The same applies to the case where the parties to the exchange contract arbitrarily assessed the value of the object to be exchanged and calculated the difference, and the actual transfer value is not confirmed by the actual transaction value reported by the head of the tax office having jurisdiction over the place of tax payment pursuant to the proviso of Article 96(1)6 of the Income Tax Act and Article 96(4)4 of the standard market value so that the transferor cannot be calculated based on the standard market value.

2) In light of the above legal principles, the instant disposition that the Defendant calculated capital gains on the basis of the calculation of capital gains after considering the following circumstances that can look at the overall purport of each of the evidence presented above, and the acquisition value and transfer value based on the standard market price, is lawful as it is in accordance with the provisions of the relevant statutes.

① There is no material to prove that the instant exchange contract was made on the basis of the objective valuation of the subject matter of exchange, and rather, the exchange contract made between the Plaintiff and GaO as of the time of the instant exchange contract is stipulated as a special agreement that “the Plaintiff and GaO shall conclude this contract by disregarding the market price and by need.” Therefore, the instant exchange contract constitutes a case where the actual transfer price cannot be confirmed.

② Although the Plaintiff reported the transfer value based on the actual transaction value under the instant exchange contract, and as seen earlier, as the transfer value reported by the Plaintiff is not verified based on the actual transaction value, the Defendant shall calculate the transfer value based on the standard market price.

3) Therefore, the Plaintiff’s aforementioned assertion on a different premise is without merit.

3. Conclusion

The plaintiff's claim of this case is dismissed as there is no reasonable ground.