Suwon District Court 2013Gudan10070 ( October 27, 2015)

The contract of this case constitutes a case where the actual transaction price cannot be confirmed and thus the standard market price should be recognized as acquisition price.

Unless the market price appraisal on the right to lease of the commercial building of this case and the settlement and stopping of the difference in the appraisal value, the sum of the above amounts cannot be determined as the actual transaction price of the real estate of this case

Article 88 of the former Income Tax Act (Definition of Transfer)

Seoul High Court 2015Nu40028 Revocation of Disposition imposing capital gains tax

% Interest Rate

Head of Central Tax Office

Suwon District Court Decision 2013Gudan10070 Decided March 27, 2015

3, 2016.3

March 24, 2016

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of capital gains tax**,**,*** is revoked on April 1, 2012 against the Plaintiff on April 1, 2012.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

가. 원고는 2009. 6. 4. 김$$과 사이에 서울 영등포구 영등포동8가

hereinafter referred to as "the contract of this case" (hereinafter referred to as "the contract of this case")

(2) On December 23, 2009, when the registration of ownership transfer was not completed, the transfer income tax was not reported on December 23, 2009.

B. As a result, the defendant conducted on-site investigations pursuant to Article 97 (1) 1 (a) and (b) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009; hereinafter the same), the plaintiff's on-site acquisition

The value******* on April 1, 2012, on which the Plaintiff imposed capital gains tax**,**,***** (including additional tax) on the Plaintiff on April 1, 2002 (hereinafter referred to as the "disposition of this case").

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on June 27, 2012, but was dismissed on November 19, 2012.

[Grounds for recognition] The items in Gap evidence 4-1, 2, Eul evidence 1-1, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the parties' assertion

1) Plaintiff

A) The contract that the Plaintiff acquired the instant real estate is an exchange contract with the right to lease (the lease deposit amounting to KRW 50 million; hereinafter referred to as “the right to lease of the instant commercial building”) with the Plaintiff’s 593-3 underground ratio per cent of the Plaintiff’s 593-3 ratio per cent of the set-off price in Seoul Special Metropolitan City, Nowon-gu, and thus, it is impossible to confirm the actual transaction price. Therefore, the acquisition

나) 설령 원고가 이 사건 부동산을 취득한 계약이 교환계약이 아니라고 하더라도 원고의 이 사건 부동산 취득가액은 원고가 승계한 대출금 4억 원과 김$$이 이 사건 부동산의 대가로 취득한 빌라1)의 실지취득가액 *,000만 원에 원고의 임차보증금채권 등 &,000만 원을 합한 5억 2,000만 원으로 인정하여야 하고, 또한 원고가 김$$에게 지급한 대출금에 대한 6개월 간의 이자 @@,565,150원, 김$$의 대출이자 ,000만 원, 이 사건 계약을 중개한 정상호가 이 사건 상가 임차권을 정광민에게 처분하는 과 정에서 정광민으로부터 받고서도 누락한 ,000만 원 등도 원고의 취득가액에 반영되어 야 한다.

2) Defendant

A) The substance of the instant contract constitutes a general sales contract which provides that the balance, excluding loans secured by the instant real estate, out of the sales price of the instant real estate, shall be paid as the right to lease the commercial building of this case, and thus, cannot be seen as cases where the actual

나) 또한 구 소득세법 제114조 제7항 및 구 소득세법 시행령 제176조의2 제1항 에 따르면, 실지거래가격을 확인할 수 없는 경우란 '양도 또는 취득 당시의 실지거래가액의 확인을 위하여 필요한 장부.매매계약서.영수증 기타 증빙서류가 없거나 그 중 1) 김$$은 당초 이 사건 부동산의 대가로 원고의 이 사건 상가 임차권을 양수하기로 하였으나, 약사인 자신이 호프집을 운영

Considering that it is not appropriate to take over the right to lease of the commercial building of this case, it is not appropriate to take over the right to lease of the commercial building of this case, and the normal circumstances mediating the contract of this case sold the right to lease of the commercial building of this case to a third party, and acquired the right to lease of this case 1096 Dara

In the case where the essential part is insufficient (No. 1), "book." A sales contract, receipt and other documentary evidence may be recognized as a transfer value or acquisition value in the order of the transaction example, appraisal value, conversion value, and standard market price only in the case where it is obvious that the content of the receipt and other documentary evidence is false in light of the transaction example, and the appraisal value assessed by the appraisal corporation under the Public Notice of Values and Appraisal of Real Estate Act (No. 2). However, in this case, it is obvious that it does not fall

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Whether the instant contract constitutes a case where the actual transaction price cannot be confirmed

A) The actual transfer value of the relevant asset, which serves as the basis for calculating the relevant legal principles of capital gains tax, refers to the value that the transferor transfers the asset at the time of the transaction and received as the price for the transfer and is objectively recognizable by the sales contract or other evidence. If the transaction is an exchange, the actual transfer value may be confirmed if the transaction is accompanied by the procedure for settlement of the difference in the appraised value by appraising the market value of the object of exchange based on the standard value. However, if the transaction is a simple exchange, the actual transfer value shall not be confirmed (see, e.g., Supreme Court Decisions 98Du19841, Nov. 26, 1999; 2009Du19465, Feb. 10, 2011; 2008Du9874, Jul. 28, 2011).

B) recognized facts

갑 제2호증, 을 제2호증의 각 기재와 제1심 증인 정상호, 김$$의 각 증언에 변론 전체의 취지를 종합하면, 다음과 같은 사실이 인정된다.

(1) 원고는 이 사건 부동산을 김$$으로부터 취득하면서 그 대가로 이 사건

부동산에 설정되어 있었던 기존의 대출금 4억 원을 원고가 승계하고, 원고의 서울 노원구 상계동 지하 이 사건 상가 임차권을 김$$에게 양도하기로 하였다.

(2) 원고가 김$$으로부터 이 사건 부동산을 취득하면서 작성한 부동산교환

계약서(갑 제2호증. 이하 '이 사건 계약서'라 한다)의 상단에 "갑(김$$)과 을(원고)은 서로 간 합의하에 다음과 같이 부동산 물물교환 계약을 체결한다."고 기재되어 있고, "1. 갑의 물건 소재지: 서울 영등포구 영등포동8가 002 미소로 제1층 제000호, 교환물건 기록사항: 전유 부분 41.21㎡, 대지권의 비율 1106.1분의 13.72, 융자금 4억 원"이라고 기재되어 있으며, "2. 을 물건 소재지: 서울 노원구 상계동 00000, 교환물건 기록사항: 지층 약 40평, 보증금 오천만 원, 월차임 이백삼십만 원(시설집기일 체)"이라고 기재되어 있고, 그 아래에 "3. 상기 물건의 물물교환계약을 체결함에 있어 갑과 을은 서로 간 협의 하에 물물교환차액을 다음과 같이 (갑이 을에게) (을이 갑에 게) 지불하기로 한다. 물물교환차액: 맞교환, 계약금: 쌍방이행금 이백만 원정은 계약시에 지불한다. 잔금: 이전서류 및 임대차승계는 2009. 5. 15. 중개업자 입회하에 지불 한다."고 기재되어 있다.

(3) 이 사건 계약을 체결하면서 원고와 김$$은 이 사건 부동산이나 이 사건

The market value of the right to lease of commercial buildings was not assessed.

C) Whether the actual transaction price can be confirmed

In light of the above facts and the legal principles as seen earlier, it is reasonable to deem that the instant contract constitutes a case where the actual transaction price cannot be confirmed.

(1) According to the language and text stated in the instant contract, the instant contract is a contract to exchange the instant real estate and the instant commercial building lease.

(2) 원고와 김$$이 이 사건 부동산과 이 사건 상가 임차권을 목적물로 하여

In the process of concluding a contract for the exchange, the market price appraisal for the exchanged object has not been made and the appraisal procedure has not been taken for the difference in the amount.

(3) The defendant was actually borne by the plaintiff at the time of acquiring the real estate of this case

Although the current amount of loans and the deposit amount of KRW 400 million and the normal amount of the right to lease of the commercial building of this case are KRW 20,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00

(4) In the case of this case, the defendant is subject to Article 176-2 (1) 1 of the former Enforcement Decree of the Income Tax Act.

Although it is argued that the actual transaction price cannot be confirmed because it does not fall under subparagraph 2, this case's contract is an exchange contract, unlike a sales contract, where Kim* transferred the real estate at the time of the transaction, and the price received in return for the transfer of the real estate at the time of the transaction is not objectively recognized by the contract or other evidence, and since the market price appraisal on the real estate and the right to lease of the commercial building at the time of the exchange was not made, it shall be viewed as falling under Article 176-2 (1) 1 of the former Enforcement Decree of the Income

2) Scope of revocation

According to Article 114(7) of the former Income Tax Act and Article 176-2(3) of the former Enforcement Decree of the Income Tax Act, where the actual transaction price at the time of transfer or acquisition is not verifiable in determining the tax base and amount of capital gains tax, the transfer value or acquisition value may be recognized in the order of transaction example, appraisal value, conversion value

In this case, as seen earlier, it is impossible to confirm the actual transaction price at the time the Plaintiff acquired the instant real estate, and there is no evidence to know the transaction example and appraisal price that can be applied as the acquisition price of the instant real estate.

Meanwhile, according to the purport of the entire pleadings, if the acquisition value of the instant real estate is calculated based on the conversion price or the standard market price, it is deemed that there is no capital gains tax to be imposed on the Plaintiff regarding the transfer of the instant real estate. Accordingly, the entire disposition of the

3. Conclusion

Thus, the plaintiff's claim should be accepted with due reasons, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and the disposition of this case is revoked.

Judges of the presiding judge

Relevant statutes

(1) The former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009)

§ 88. (Definition of Transfer)

(1) Sale, regardless of registration or record concerning assets in the column for transfer under Article 4 (1) 3 and this Chapter, shall be made;

An asset is actually transferred for price due to an exchange, an investment in kind in a corporation, etc.

In such cases, onerous donation (excluding cases falling under the main sentence of Article 47 (3) of the Inheritance Tax and Gift Tax Act) shall be made.

(1) If a donee takes over any obligation of a donor in such manner, the equivalent of the amount of such obligation in the value of the donation.

Part shall be considered to have been actually transferred for value.

Article 94 (Scope of Transfer Income)

(1) Capital gains shall be the following income generated in the relevant year:

1. Land (land category to be registered in the cadastral record pursuant to the Act on Land Survey, Waterway Survey and Cadastral Records);

(2) Transfer of buildings (including facilities or structures attached to such buildings) or buildings

Income accruing from such income;

2. Income accruing from transfer of any right to real estate falling under any of the following items:

(a) Right to acquire real estate (in case of the completion of a building and its appurtenant land);

(including the rights to acquire)

(b) Superficies;

(c) Chonsegwon and registered real estate lease; and

Article 96 (Transfer Price)

(1) The transfer value of assets under each subparagraph of Article 94 (1) shall be the transferor and transferee at the time of transfer of the relevant assets.

The actual transaction price between the transferee shall be the actual transaction price (hereinafter referred to as "actual transaction price").

Article 97 (Calculation of Necessary Expenses in Transfer Income)

(1) Necessary expenses to be deducted from the transfer value in the calculation of gains on transfer of a resident shall be as follows:

shall be deemed to have been made.

1. Acquisition value:

(a) Actual transaction price required for the acquisition of assets under subparagraphs of Article 94 (1): Provided, That subparagraphs of Article 96 (2);

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In cases falling under the main sentence of this Article, the standard market price at the time of acquisition

(b) In cases falling under the main sentence of item (a), where it is impossible to confirm the actual transaction price at the time of acquisition, it means;

Value of transaction example, appraisal value or conversion value determined by Ordinance;

(3) The calculation of necessary expenses for capital gains under paragraphs (1) and (2) shall be as follows:

1. Where acquisition value is based on the actual transaction value, necessary expenses shall be the following amount:

by adding the amounts under paragraph (1) 2 and 4 to the amounts under paragraph (1) 4.

section 3.

(a) In cases falling under the main sentence of paragraph (1) 1 (a), the relevant actual transaction price;

(b) An actual transaction as at the time of acquisition according to the conversion price under paragraph (1) 1 (b) and Article 114 (7);

Where calculating the value, acquired pursuant to Article 8 of the Addenda to the amended Act of 4803;

Assets (Inheritance or certificate) acquired before the date deemed to be the date of fictitious acquisition (hereafter in this Article, referred to as "the date of fictitious acquisition").

The acquisition value of such assets shall include the actual transaction value at the time of acquisition and the date of acquisition on such value.

An amount calculated by multiplying the rate of increase in the production of holding period from the date of fictitious acquisition to the date of fictitious acquisition.

Where it is based on the aggregate value, the value of the aggregate;

(c) Where it is based on the main sentence of paragraph (7), the relevant actual transaction price;

Article 114 (Determination, Revision and Notification of Tax Base for Transfer Income and Amount of Tax)

(7) In applying paragraphs (4) through (6), the transfer value or acquisition value shall be the actual transaction value.

by books or other documentary evidence for such reasons as determined by the Presidential Decree.

If it is impossible to recognize or confirm the actual transaction price at the time of the Do or acquisition, it shall be determined by Presidential Decree.

(2) The transfer value or acquisition value shall be the transaction example value, appraisal value, and conversion value.

In addition, the acquisition value calculated by converting the case value or appraisal value into the method prescribed by the Presidential Decree); or

may be determined or corrected after an estimation based on the standard market price, etc.

(1) The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010)

Article 176-2 (Estimated Decision and Revision)

(3) Where the transfer value or acquisition value is estimated, determined or revised by estimation under Article 114 (7) of the Act, it shall apply:

The value calculated by applying the following methods in sequence: Provided, That this shall not apply to the transaction example under subparagraph 1;

The appraised value under subparagraph 2 shall be the value based on transactions with the related parties under Article 98 (1).

If it is deemed objectively and objectively unfair, it shall not apply.

1. Relevant assets (excluding stocks, etc. of stock-listed corporations) within three months before and after the date of transfer or acquisition respectively;

(2) If there is an example of transaction of assets which are identical or similar to that, the value thereof;

2. Not less than two persons for the relevant assets (excluding stocks, etc.) within 3 months before and after the date of transfer or acquisition respectively; and

Value assessed by a certified public appraisal corporation which is deemed to have credibility;

Where there exist days before and after the date of transfer or acquisition respectively, the appraisal price shall be within three months;

Average amount of money

3. Acquisition price converted under paragraph (2); and

4. The end of the standard market price.