The burden of proof on the tax base can be converted to the burden of proof on the tax authority, but the burden of proof can be converted in consideration of the difficulty of proof or equity between the parties.

The burden of proof of the tax base that is the basis of taxation in a lawsuit seeking cancellation of capital gains tax is in the tax office, but if it is reasonable to allow the taxpayer to prove in consideration of the difficulty of proof or equity between the parties, it is reasonable to recognize the necessity of proof to the taxpayer.

Article 97 (Calculation of Necessary Expenses of Transfer Income)

2015Guhap1442 Revocation of disposition, etc. of imposing capital gains tax

AA

The director of the tax office of Luxembourg

September 11, 2015

October 23, 2015

1. The part of the instant lawsuit regarding the revocation claim against the imposition of local income tax shall be dismissed.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of 30,127,970 won for the Plaintiff on August 6, 2014, and special rural development tax of 1,722,640 won for special rural development tax (31,850,610 won as stated in the correction and supplementary statement of purport of claim and special rural development tax, inasmuch as the amount of capital gains tax of 31,850,610 won as stated therein is the aggregate of the above capital gains tax and special rural development tax, the purport of claim is stated as above) is revoked (the Plaintiff’s disposition of imposition by adding KRW 150,00,000 to the acquisition value of ownership is also sought, but this is not considered a separate claim since it appears to have asserted the scope of revocation of the above disposition).

1. Details of the disposition;

가. 원고는 1992. 2. 24. ■■ ■■구 ■■동 ■■■-■■■■ 하천 378㎡, 같은 동■■■-■■ 하천 1,936㎡(이하 '이 사건 토지'라 한다)에 관하여 1987. 5. 10.자 명의신탁해지를 원인으로 한 소유권이전등기를 마쳤다.

B. As the land was expropriated in KRW 382,012,420 on December 14, 2012 in ○○○○○○○○○○○○, the Plaintiff, on February 28, 2013, filed a preliminary return on capital gains tax by deeming the acquisition value of KRW 339,600,000,000 borrowed from the Defendant on the written agreement on the termination of title trust and the third party’s borrowing of KRW 189,60,000 on the written agreement on the termination of title trust (hereinafter “the instant loan”).

C. Around May 2014, the Defendant conducted an on-site verification of the Plaintiff’s transfer income tax, and then deducted the instant loan from the acquisition value on the ground that the Plaintiff’s acquisition value of the instant land was only the construction cost, and that there was no evidence regarding the details of use. On August 6, 2014, the Defendant notified the Plaintiff of the correction and notification of KRW 30,127,970 (including additional tax of KRW 6,214,753), special rural development tax of KRW 1,72,640 (including additional tax of KRW 232,080) and local income tax of KRW 2,784,00 (hereinafter “instant disposition”).

E. The Plaintiff appealed and filed an appeal with the National Tax Service, but was dismissed on March 31, 2015.

[Reasons for Recognition] Facts without dispute, entry in Gap evidence 1, 6, 9 (including each number), the purport of the whole pleadings

2. Whether the part of the instant lawsuit seeking revocation of imposition of local income tax is legitimate

Since the imposition of local income tax is under the jurisdiction of the head of the local government having jurisdiction over the place of tax payment, the part against the defendant seeking revocation of the imposition is unlawful.

The local income tax on a resident's capital gains shall be reported and paid to the head of the Si/Gun/Gu having jurisdiction over the place of tax payment, and the head of the Si/Gun/Gu having jurisdiction over the place of tax payment shall also correct the local income tax on the resident's capital gains, so where the head of the tax office collects the local income tax according to the method of tax assessment and notice in accordance with the Framework Act on National Taxes or the Income Tax Act, even if the local income tax is imposed and notified together, this seems to have been imposed and notified by the head of the relevant Si/Gun/Gu. Therefore, the defendant in an appeal suit seeking revocation of the disposition of taxation shall be the head of the relevant Si/Gun/Gu having jurisdiction over the place of tax payment (

Therefore, the part seeking revocation of imposition of local income tax among the instant lawsuit is unlawful as it is against a non-qualified person.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Since around 1961, CCC had a license for reclamation of public waters, the Plaintiff leased KRW 339,60,000 to CCC and its partners, whose construction cost falls short of the construction cost, from August 20, 1983 to September 8, 1993. Since DDR and EE did not repay the above loan, the Plaintiff was awarded a favorable judgment by filing a lawsuit against DDR for the claim for ownership transfer registration of the instant land. Accordingly, the Plaintiff received the registration of ownership transfer on February 24, 1992 due to the title trust termination on May 10, 1987.

Of KRW 339,60,000 lent to DD or EE as above, the Plaintiff borrowed from three persons, including BB, and additionally lent KRW 150,00,00 on September 8, 1993. Since the above amount was used for bank construction and stone construction material expenses, the above amount is included in the acquisition value of the land of this case, but the disposition of this case which did not recognize it is improper.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

In a lawsuit seeking revocation of capital gains tax, the burden of proof on the tax base, which is the basis of taxation, is located in the tax office. However, the necessary expenses are only favorable to the taxpayer, and most of the facts generating necessary expenses are located in the territory under the control of the taxpayer and the tax office is difficult to prove. Thus, in a case where it is reasonable to allow the taxpayer to prove in consideration of the difficulty of proof or the equity between the parties, it is reasonable to recognize the necessity of proof to the taxpayer (see, e.g., Supreme Court Decision 2007Du22955, Mar. 26, 2009).

However, in full view of the statements in Gap evidence 3-1 to 4-4, and the purport of the entire argument in the testimony of the FF, the plaintiff's husband's GG borrowed a total of KRW 150,000 from FF, BB, HH, and JJ during the period from February 15, 1991 to May 8, 193. However, according to the evidence evidence No. 4, the agreement written between GG and EE as of July 3, 1991 stated that "where the EE fails to repay the total of KRW 189,60,000,000, the ownership of the land of this case is transferred, it is recognized that the plaintiff or GG used the loan of this case in addition to the above agreement amount of KRW 189,600,000,000, or there is no other evidence to acknowledge that the loan of this case was used by the D or EE in addition to the loan of this case.

Therefore, since the loan of this case cannot be seen as acquisition value of the land of this case or capital expenditure, the plaintiff's above assertion is without merit.

4. Conclusion

Therefore, the part of the lawsuit of this case concerning revocation of imposition of local income tax is illegal, and thus, the remainder of the plaintiff's claim is dismissed as it is without merit.