Whether the acquisition price of the land of this case is reasonable by the plaintiff

Although the first contract of this case states in detail that the total purchase price and payment method of the land prior to the division of this case can be accepted, the possibility that the second contract of this case is arbitrarily prepared by the intervenor or prepared by mutual agreement between the two parties cannot be ruled out, as alleged by the plaintiff.

Article 104 of the Income Tax Act

The revocation of revocation of revocation of capital gains tax correction or rejection by Seoul Administrative Court 2015Guhap62095

AA

BB Director of the Tax Office

6.10

July 1, 2016

1. On February 3, 2014, the part that exceeds KRW 26,291,096 among the disposition rejecting the correction of the capital gains tax belonging to the year 2013 rendered against the Plaintiff shall be revoked.

2. The supplementary part of the costs of lawsuit shall be borne by the Intervenor, and the remainder shall be borne by the Defendant.

1. Details of the disposition;

A. On March 8, 2011, the Plaintiff acquired and owned 2,363 square meters of forest land (hereinafter “the land before the instant partition”) from the Intervenor joining the Intervenor (hereinafter “ Intervenor”), and transferred the said land to the Plaintiff between 241-18 and 649 square meters of forest land, 241-32 forest land and 657 square meters of the same Ri, 241-33 forest and 530 square meters of the same Ri, 241-34 forest and 268 square meters of the same Ri, 241-34 forest and 241-35 forest and 259 square meters of the same Ri, and 241-33 forest and 530 square meters of forest and 241-34 forest and 268 square meters of forest and 241-35 forest and 984 square meters of the same Ri (hereinafter “the instant land”).

B. On April 30, 2013, the Plaintiff reported and paid the transfer income tax at KRW 174,123,808 [the acquisition value of the instant land = 166,46,356 (the acquisition value of the instant land prior to the instant subdivision KRW 440,00,000 + X894/2,363) + acquisition tax + KRW 7,657,452]; and transfer value of the instant land at KRW 370,00,000].

C. On December 26, 2013, the Plaintiff claimed that the Defendant add necessary expenses of the instant land KRW 131,334,086 to the necessary expenses and sought a refund of capital gains tax of KRW 47,245,360 for the year 2013. However, the Defendant rejected the said claim for correction on the ground that, on February 3, 2014, KRW 131,054,423, excluding land surveying expenses of KRW 279,663, was unclear (hereinafter “instant disposition”).

D. On September 22, 2014, the Plaintiff asserted that the acquisition value of the land before the instant subdivision was KRW 600,000,000 upon filing an appeal with the Tax Tribunal on September 22, 2014, via an objection on May 2, 2014. On February 9, 2015, the Tax Tribunal re-examineed the acquisition value of the land before the instant subdivision to the former owner through a confirmation investigation, etc., and determined that the tax base and tax amount were corrected according to the result, but the remainder of the appeal is dismissed.

E. Accordingly, the Defendant, as a result of re-audit according to the decision of the Tax Tribunal from March 23, 2015 to April 11, 2015, determined that the acquisition value of the land before the instant subdivision shall be KRW 440,000,00 as originally reported by the Plaintiff, and determined that the instant disposition was maintained on April 24, 2015.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 9, 14 (including branch numbers in the case of provisional evidence), Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On August 9, 2010, KRW 600,000 of the purchase price under the sale contract (hereinafter “the instant contract”) prepared by the Plaintiff with the Intervenor regarding the land prior to the instant subdivision is the actual transaction price of the land prior to the instant subdivision. The sale contract (hereinafter “the instant contract”) dated March 2, 2011, on which the Plaintiff entered the purchase price of KRW 440,000,000, which was initially attached at the time of reporting the transfer income tax as the actual transaction price of the land prior to the instant subdivision, was voluntarily prepared by the Intervenor. Nevertheless, the instant disposition was unlawful on the premise that the purchase price of KRW 440,00,000 is the actual transaction price of the land prior to the instant subdivision.

B. Determination

1) In calculating gains on transfer, the actual transaction price, which is the basis for calculating gains on transfer, refers not to the market price that reflects the objective exchange value, but to the amount of actual agreement as the price for transaction itself or at the time of transaction (see, e.g., Supreme Court Decision 2006Du7171, Apr. 26, 2007). As for the Plaintiff’s acquisition of land prior to the instant partition, two different transaction agreements have been prepared, one of the instant contracts is a contract on which the actual acquisition value is stated.

2) First of all, the following facts are recognized in full view of the respective descriptions of evidence Nos. 3, 4, 7, 10, 11, 13, and 14 and the purport of the whole pleadings.

A) Around April 14, 2008, 2000 won was loaned from the O agricultural cooperative, CC set up a collateral security (hereinafter “mortgage”) with respect to the land of this case, which is KRW 448,000,000,000 prior to the division, to the O agricultural cooperative.

B) The Plaintiff paid to the intervenors KRW 70,00,000,000 on August 3, 2010, and KRW 70,000,000 on August 9, 2010.

C) On August 9, 2010, the Plaintiff drafted the instant first contract with the Intervenor with the following content.

D) On September 6, 2010, the Plaintiff paid KRW 40,000 to the intervenors.

E) On October 4, 2010, the Plaintiff withdrawn KRW 90,000,00 from the Agricultural Cooperative Account under its own name. On the same day,CC prepared and issued to the Plaintiff a receipt stating that “10,000,000 won, excluding KRW 10,000,000,000 as an intervenor’s agent, shall be paid as the balance of the land before the instant partition, and if a tax invoice is issued, the Plaintiff and one other shall immediately deliver a seal impression for sale.”

F) The Plaintiff’s certificate of land right to the land before the instant partition is accompanied by the instant secondary contract dated March 2, 201, wherein the Intervenor and the purchaser are the Plaintiff. The content thereof are as follows.

G) On April 11, 2011, the Plaintiff borrowed KRW 400,000,000 from an OO agricultural cooperative, and repaid the principal and interest of the secured debt (principal KRW 320,00,000, interest KRW 53,695,681) of the instant right to collateral security (principal KRW 320,00,00, interest KRW 595,681). The Plaintiff repaid the remainder of KRW 26,304,319, the principal and interest of the instant right to collateral security (principal KRW 320,00,00,000, KRW 26,304,319

3) Comprehensively taking account of the following circumstances in view of the purport of the entire argument in the above facts acknowledged as above, it is recognized that the contract of this case No. 1 was a contract in which the real acquisition value of the land acquired prior to the division was stated, and contrary thereto, the entry of No. 16 was not believed, and the remaining evidence submitted by the defendant and the Intervenor did not interfere with the above recognition, nor did there be counter-proof otherwise.

① Even though the principal of the secured obligation under the instant mortgage is KRW 320,000,000, the actual amount actually agreed in return for payment at the time of transaction is the actual transaction value. The Plaintiff’s debt amount to be acquired by acquiring the ownership of the land before the instant subdivision is clearly stated as KRW 400,000,000, and the Plaintiff actually repaid KRW 400,000,000, such as D’s principal and interest of D’s loan with its own name. Therefore, the Plaintiff’s debt amount of KRW 400,00,000, which the Plaintiff succeeded from the Intervenor, shall be deemed as part of the acquisition value of the land before the instant subdivision.

② On October 4, 2010, the remainder of the Plaintiff’s account, which is the date of the remainder payment under the instant contract, withdrawn KRW 90,000,000, which is the same as the remainder of the debt acquisition, excluding the debt acquisition amount. On the same day,CC drafted and issued a receipt for KRW 90,000,00 as the Intervenor’s agent, and thus, it is difficult to view that the said KRW 90,000,000 was entirely unrelated to the acquisition of land before the instant partition.

③ In the instant contract No. 1, the total purchase price and payment method of the land prior to the instant subdivision are written in detail to the effect that the purchase price for the said land would be 40,000,000 won, and the instant contract No. 2 merely entered the purchase price for the said land in the form of KRW 440,000,000, and did not specify any relationship between the debt acquisition amount and the balance and affixed the Plaintiff’s seal imprint. This is the fact that only the Kim Jae-ro, which appears to be the actual agent of the Plaintiff at the time of the preparation of the instant contract No. 2, was located in the said place, and that the Plaintiff could not have been at the site (see evidence No. 12-8). Furthermore, the possibility that the instant contract No. 2 was drafted by the Intervenor or prepared by a bilateral agreement, as alleged by the Plaintiff, may not be ruled out.

④ As the Plaintiff did not pay intermediate payments and remainder under the instant contract, the Defendant and the Intervenor asserted that the instant contract was concluded again after the rescission of the instant contract. However, the Plaintiff paid KRW 40,00,000 to the Intervenor under the instant contract, as seen earlier, and that there was no content on the refund or settlement of the price already paid pursuant to the instant contract under the instant contract No. 1, it is difficult to accept the said assertion on the grounds that the instant contract No. 2 did not contain any content on the refund or settlement of the price already paid under the instant contract.

⑤ The Defendant and the Intervenor asserted that the above construction cost is included in KRW 600,000,000,000 for the purchase price under the first contract, on the ground that the content of the “public works” included in the seller’s name. However, it cannot be readily concluded that the above provision of the first contract contains any money other than the purchase price of the land prior to the instant subdivision. From the standpoint of the Intervenor, there is no reason to agree to enter the purchase price higher than the actual transaction price even when the Intervenor bears the increase in the transfer income tax to be borne by the said land.

4) As such, if the acquisition value of the land prior to the instant partition (actual transaction value) is KRW 600,00,000 as stated in the instant contract No. 1, the acquisition value of the instant land is KRW 226,99,576 (=600,000,000 X 894/2,363). On the premise of such determination, the acquisition value of the instant land is KRW 26,291,096 (including penalty tax for unfaithful payment KRW 307,90).

5) Therefore, the part exceeding 26,291,096 won of the instant disposition is unlawful and thus should be revoked.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.