Busan District Court 2014Guhap21777 (2015.05)

It is legitimate that the Defendant imposed capital gains tax by calculating the conversion value at the time of calculating the acquisition value of the shares in this case.

(As in the judgment of the court of first instance, it is reasonable to deem that the share in this case constitutes a case where the actual acquisition value cannot be recognized or verified by documentary evidence, such as a sales contract, and since the land to be compared is difficult to be deemed an asset having the identity or similarity with the land in this case, it is legitimate for the Defendant to impose capital gains tax by calculating the conversion value at the time

Article 114 of the Income Tax Act shall be determined, corrected and notified on the tax base and amount of tax for transfer income.

2015Nu20640 Revocation of Disposition of Imposing capital gains tax

Park AA

○ Head of tax office

Busan District Court Decision 2014Guhap21777 Decided February 5, 2015

May 22, 2015

June 12, 2015

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 imposition of the capital gains tax (including additional tax) on November 1, 2013 by the defendant against the plaintiff on November 1, 2013 shall be revoked.

1. The issues of the instant case and the judgment of the court of first instance

A. The issues of the instant case

The Plaintiff, on November 1, 2013, filed a preliminary return on the tax base of capital gains on 1,337/3,000 of the 2,608 square meters in ○○○○○○○ Dong, ○○○○○○, and 2,608 square meters (hereinafter referred to as “the instant land,” and among them, the said shares; hereinafter referred to as “the instant shares”), claiming that the acquisition value is the actual transaction value under the real estate sales contract as ○○○, which is the actual transaction value. However, the Defendant calculated the acquisition value as the conversion price as ○○, which is the conversion price, on the ground that the acquisition value is not verified due to the failure to submit specific evidentiary documents on payment for the acquisition of the instant shares, and notified the Plaintiff of the correction and notification (hereinafter referred to as “instant disposition”).

The key issue of this case is: ① the Plaintiff received the instant shares from the former owner Kim Jong-soo in lieu of performing his/her obligation, and the actual acquisition value is claimed as KRW 00 won. Whether the actual acquisition value of the instant shares can be recognized or confirmed by documentary evidence, such as a sales contract, or ② If the actual acquisition value of the instant shares is not verified, the Plaintiff asserts that the acquisition value shall be calculated by the sales price of August 23, 2005, the sales price of ○○○○-dong, ○○, ○○, ○, 1785 square meters (hereinafter “the instant comparative land”) in the vicinity of the instant land, which is a transaction example example, by calculating the acquisition value according to the sales price of August 23, 2005, instead of using the transaction example, it is legitimate to impose the transfer income tax by calculating the acquisition value converted pursuant to Article 176-2 (2) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No.

B. Judgment of the court of the first instance

1) In relation to the first issue, the court of first instance: ① If the Plaintiff was transferred the instant shares by accord and satisfaction, the sum of the secured debt amount under the name of the ○○ Saemaul Depository, which was decided to succeed to the original amount of the said shares extinguished by the Plaintiff’s accord and satisfaction, shall be deemed the actual transaction value of the instant shares. The Plaintiff merely asserted that the Plaintiff leased money to A for a considerable period of time. The Plaintiff did not state the specific lending period and amount, and there was no other objective documents, such as evidential documents or financial data to verify the existence of the loan claims, and ② was present as intermediary at the time of the preparation of the instant sales contract; ② was present as intermediary at the time of the preparation of the sales contract; the Plaintiff and BB’s domicile at ○○○dong, ○○○, which was paid KRW 7,00,000,000, which was paid as brokerage fees, without stating the real maximum debt amount in the name of the Plaintiff’s residence or the real debt amount in the instant sales contract.

2) With respect to the second issue, the court of first instance held that: (a) the instant land is located in the ○○○ basin of light metal; (b) the instant land is located in the lower side of two parcels on the same side; and (c) the instant land is not adjacent to one another; (b) the value per square meter at the time of the transfer of the instant comparative land was KRW 480,400; and (c) the instant land and the instant land were transferred to ○○ Development Co., Ltd. on June 2, 2011; and (c) the said land were transferred to ○○○○ in the instant land, and the said transfer value was also located in the area of the instant land subject to comparison; (d) the land subject to comparison is located in the lower side of two parcels on the two sides; and (e) the land subject to comparison is KRW 480,400,00 per square meter at the time of the transfer of the instant comparative land; and (e) the Defendant’s assessment of the acquisition value of the instant land cannot be deemed lawful in light of the transaction value.

2. The judgment of this Court and the citing the judgment of the first instance court

The plaintiff asserts that the disposition of this case was unlawful when calculating the acquisition value converted according to the provisions of related Acts and subordinate statutes, not the actual acquisition value of the shares of this case. However, in light of all circumstances cited by the judgment of the first instance court, the judgment of the court of first instance that held the disposition of this case lawful is justifiable.

Therefore, the court's explanation on this case is the same as the part on the grounds of the judgment of the court of first instance. Thus, it is accepted by Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

3. Conclusion

Therefore, the judgment of the first instance court is just, and the plaintiff's appeal is dismissed as it is without merit.