Seoul Administrative Court 2010Gudan8518 ( October 17, 2010)

early 2010west039 ( October 31, 2010)

Land at the time of acquisition shall be deemed as officially assessed individual land price.

It is difficult to believe that any delinquent national tax liability and any obligation of provisional seizure which have been seized or provisionally seized on the land at the time that the land was donated, and any actual transaction price at the time of the transfer of land shall be considered as a successful tender price, and any actual transaction price at the time of the acquisition shall be difficult to calculate the market price and any disposition imposing capital

2010Nu36178 Revocation of Disposition of Imposing capital gains tax

XX

O Head of tax office

Seoul Administrative Court Decision 2010Gudan8518 decided September 17, 2010

May 18, 2011

June 15, 2011

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of capital gains tax, additional dues, and additional dues in total 11,220,900 won against the plaintiff on December 1, 2009.

1. cite the judgment of the first instance;

The reasons why this Court is used for this case are as follows, except for adding the following two judgments to the pertinent part concerning the matters asserted by the plaintiff in the trial. The reasons for this Court shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional matters to be determined;

A. The plaintiff's assertion

At the time of receiving the gift of the instant land from thisA, the Plaintiff took over the obligation of KRW 40,063,00 for the delinquent country as of the time of the registration of seizure. In light of the purport of Article 88(1) of the Income Tax Act deeming that the portion equivalent to the amount of debt out of the donation amount is transferred at a cost, in calculating gains on transfer following the successful bid of the instant land, the acquisition value to be deducted from the transfer value shall not be the standard market value, but the amount of acquisition value to be deducted from the transfer value shall be deemed as the actual transaction value, rather than the amount of the acquisition value to be deducted from the transfer value.

At the time of receiving the donation of the instant land, the Plaintiff also assumed the obligation of provisional attachment of KRW 20 million from thisA at the time of receiving the donation, and the creditor of provisional attachment was paid dividends in the auction procedure. Therefore, the amount of the provisional attachment claim amount of KRW 20 million should be deducted from the transfer value as expenses inevitably incurred by the Plaintiff in transferring or acquiring the instant land

Even if the transfer of the instant land made by the Plaintiff to thisA does not constitute an onerous donation, it is deemed that the entire act is a commercial transfer similar to the sale and purchase, and that there was an agreement to acquire claims for provisional seizure and seizure in lieu of the payment of the purchase price. Therefore, the acquisition price shall be deemed the amount equivalent to the provisional seizure

B. Determination

1) Transfer margin shall be calculated by deducting necessary expenses, such as acquisition value, from the transfer value (Article 95(1) of the Income Tax Act); transfer value and acquisition value, in principle, shall be calculated based on the actual transaction value (Article 96(1) and Article 97(1)1(a) of the Income Tax Act). When calculating the actual transaction value at the time of acquisition of donated property, an amount assessed under Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the date of donation shall be deemed as the actual transaction value at the time of acquisition (Article 163(9) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010; hereinafter the same shall apply). In principle, where it is difficult to assess the market price, land shall be assessed based on the market price of the individual land price [Article 60 and 61(1)1 of the Inheritance Tax and Gift Tax Act (amended by Act No. 9916, Jan. 16, 2010)]

2) In light of the fact that the Defendant, at the time of receiving the donation of the instant land from thisA, took over the delinquent national tax liability and the obligation of provisional attachment on the land that was subject to attachment or provisional attachment, there is no evidence to believe and otherwise recognize that the evidence of evidence No. 9 and the testimony of E.A. witness at this trial is difficult. In addition, in the event of a re-transfer of the assets donated with onerous donation, the amount of the obligation taken over at the time of onerous donation is not the actual transaction value. In the case of an onerous donation, it is difficult to view the amount of the obligation as the transaction amount corresponding to the portion to be considered as the transfer of the relevant donated assets or the total amount of the donated assets (see, e.g., Supreme Court Decision 2006Du717

3) Article 97(1) of the Income Tax Act provides for the necessary expenses to be deducted from the transfer value as prescribed by the Presidential Decree such as the acquisition value ( Subparagraph 1), the capital expenditure ( Subparagraph 2), and transfer expenses (subparagraph 3). Article 163(1), (3), and (5) of the Enforcement Decree of the Income Tax Act delegated by it and Article 79(1) of the Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 0195, Mar. 28, 201) specifically provide for necessary expenses.

In the auction procedure, some of the sales proceeds of this case were distributed to national tax creditors or provisional seizure creditors, but Article 97 (1) of the Income Tax Act does not stipulate as necessary expenses.

4) The actual transaction price at the time of the transfer of the instant land is KRW 45.2 million, and the actual transaction price at the time of acquisition is deemed to fall under the case where it is difficult to calculate the market price of the instant land, and the instant disposition that calculated gains on transfer by calculating gains on transfer by deeming the acquisition price as KRW 10,731,200 as the officially assessed individual land price pursuant to Articles 60 and 61(1)1 of the Inheritance Tax and Gift Tax Act

3. Conclusion

The appeal is dismissed.