Cho High Court Decision 2012west0562 (O4.02)

Any disposition that considers that the transfer value of land and buildings is unclear is illegal;

In light of the fact that a sales contract was concluded by clearly dividing the purchase price of land and a building, and the separate entry of the purchase price of the building is made in the permission for a land transaction contract, and that the sale price of the building is determined in consideration of the building cost and facility cost, etc., the transfer price

2012Gudan11310 Revocation of Disposition of Imposing capital gains tax

AA

Director of the District Office

January 16, 2013

February 13, 2013

1. The Defendant’s imposition disposition of the capital gains tax on November 1, 201 by the Plaintiff on November 1, 201 shall be revoked.

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

The same shall apply to the order.

1. Details of disposition;

"The plaintiff, from the BB on July 28, 2006, newly constructed OOO-dong 1656-1, 353.3 square meters and 1656-2, 666.4 square meters (hereinafter "the land in this case") in OO-si, O-si, O-si, and newly constructed a 1,019.7 square meters of land (hereinafter "the land in this case") on October 4, 2006, after completing the registration of the transfer of ownership on October 4, 2006, 1,675.06 square meters (hereinafter "the building in this case", and hereinafter "the land in this case and the building in this case") on December 4, 2007, the plaintiff acquired land transaction permission from the head of O-dong and sold the real estate to 300,000,000 won on August 20, 2008, and then sold it to 300,000.

The Plaintiff and CCC consistently divided the transfer value of the instant land and the instant building into either OOO or OOOO, and accordingly, filed a report on the tax base of transfer income and the transfer income tax.

On July 201, the Defendant conducted a tax investigation on the details of the instant real estate transfer income tax against the Plaintiff, and deemed that the distinction between the value of the instant real estate and that of the building is unclear, and accordingly, calculated the transfer value of the instant real estate based on the standard market price, and calculated the respective transfer value of the instant land as OOOO, and the corresponding acquisition value of the instant land as OOOO, and on November 1, 201, the acquisition value of the instant building was converted acquisition value as OOOO, and the acquisition value of the instant building was corrected and notified to the Plaintiff on November 1, 2011.

The plaintiff was subject to the procedure of the previous trial (tax appeal).

[Grounds for Recognition] Unsured Facts, Gap evidence 1 and 2, and the purport of the whole pleadings;

2. Whether the disposition is lawful;

A. Summary of the Plaintiff’s assertion-

'The plaintiff and the CCC concluded a sales contract by clearly separating the purchase price of the building of this case and the land of this case, so the defendant's disposition of this case on the premise that the distinction between the value of the land of this case and the building is unclear is unlawful."

(b) Relevant statutes: To be listed in attached Form;

C. Determination

(1) In imposing capital gains tax, the transfer value of assets is in accordance with the actual transaction value between the transferor and the transferee at the time of transfer of the assets (Article 96(1) of the Income Tax Act), while the person liable to pay capital gains tax is obliged to calculate capital gains based on the actual transaction value under each of the above sales contract, unless there are special circumstances, such as that each sales contract was prepared differently from the actual transaction price, and that there is such special circumstance, the tax authority must prove that there is such special circumstance (see Supreme Court Decision 95Nu3183, Jun. 25, 1996).

(2) In full view of the agreement between the plaintiff and CCC, Gap evidence Nos. 3 through 35, and the testimony of the witness CCC, the plaintiff and CCC concluded a sales contract by clearly dividing the purchase price of the land of this case into OOOO won on Aug. 20, 2008, and the purchase price of the building of this case was acquired on Aug. 7, 2008 in the land transaction contract permission of the head of OOdong-dong head of the building of this case. The purchase price of the building of this case agreed between the plaintiff and CCC was determined by taking into account the construction cost of the building of this case, kindergarten facility cost of the building of this case, and kindergarten facility cost of this case after the appraisal date of OOO and the plaintiff filed a report on the completion of the building of this case on Dec. 4, 2007.

According to the above facts, the transfer value of the real estate in this case is clearly distinguishable by land and building, and considering the above circumstances, each transfer value is deemed appropriate.

Therefore, the defendant's disposition of this case on the premise that the transfer value of the land of this case and the building of this case is unclear is unlawful and the plaintiff's assertion is with merit.

3. Conclusion

Since the instant disposition should be revoked, the Plaintiff’s claim is accepted.