Lawsuit seeking revocation of imposition of capital gains tax;

Acquisition value of capital gains tax;

Transfer Income Tax

Seoul High Court-2013-Nu-35795 ( October 11, 2015)

- Quantities 00

Sungbuk-do Office of Foreign Affairs

Part of Rotations

January 21, 2015

February 11, 2015

1. Of the judgment of the first instance court, the part against the Plaintiff, which orders the revocation below, shall be revoked. The part of the disposition imposing capital gains tax of KRW 00 (including additional tax) on the Plaintiff on September 5, 201, which the Defendant imposed on the Plaintiff on September 5, 201, which exceeds KRW 00 (including additional tax) of capital gains tax

2. The remaining appeal filed by the Plaintiff is dismissed.

3. 90% of the total costs of the litigation shall be borne by the plaintiff and the defendant living together.

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 116,491,910 (including additional tax; hereinafter the same shall apply) that the Defendant rendered to the Plaintiff on September 5, 201 shall be revoked.

1. The part citing the judgment of the court of first instance

The reasoning of the judgment of this court is as follows: the relevant part of the judgment of the court of first instance, excluding the addition of the judgment on the plaintiff's assertion by the following paragraph, is the same as the relevant part of the judgment of the court of first instance.

2. Additional determination

(a) (1) Claim-Related

"The plaintiff asserts that this Court had reached an agreement to divide the transfer price of the factory of this case and the unregistered building and equipment into 0 billion won and 0 billion won in wastewater rights, notwithstanding the provisions of the sales contract (A evidence Nos. 3, hereinafter referred to as "the changed contract"), which was revised on 20.0.0 in this Court, into 20.0, the transfer price of the factory of this case and the unregistered building are divided into 0 billion won." However, in light of the following circumstances recognized by the aforementioned evidence and factual relations, it is justifiable to view that the defendant divided the transfer price of the factory of this case subject to taxation according to the revised contract, which is the disposal document, into the transfer price of the unregistered building, according to the entry of the changed contract. The plaintiff's assertion on this different premise is not acceptable.

1) If the formation of a disposal document is deemed true, the existence of the content of the juristic act must be recognized unless there is clear and acceptable ground to deny the content thereof (see, e.g., Supreme Court Decision 84Nu96, Mar. 12, 1985); and the fact that the Plaintiff and the right ○○○, a party to the contract, agreed to sell all of the plant, unregistered buildings, equipment, and wastewater rights of this case for KRW 1.2 billion in the sales contract (Evidence A) made for the first time between the Plaintiff and the right ○○○, which was the party to the contract, was stated in the modified contract on March 25, 2008, and then divided the factory of this case into KRW 80 million and the remainder containing the unregistered building of this case into KRW 400,00,000

2) In light of the following factual relations revealed after the preparation of the modified contract, the Plaintiff’s assertion that is different from the above disposal document is difficult to accept.

After the completion of the modified contract, ○○○○○. After receiving KRW 00 million from the Plaintiff’s loan at the time of using the instant factory as a security, the Plaintiff paid the loan in full. On October 200, the Plaintiff owned all rights to wastewater rights within the factory of this case with respect to real estate sale and purchase until full payment of the purchase price. The unpaid price shall be calculated by deducting 50% from the Plaintiff’s source color expenses to be settled to ○○○○, and the monthly claim amount related to the same business. The implementation statement with a five-year period was certified, and the right ○○○○ borrowed 30 million won from the Plaintiff. The certificate of loan with the above contents merely stated that the “sale price” account is the payable amount, and it is reasonable to view that the above certificate of loan does not vary from the Plaintiff’s loan with the content of the right to purchase and sell wastewater as the subject matter of the right to purchase and sell the wastewater as well as the content of the right to purchase and sell the wastewater as the subject matter of the right to purchase and sell the wastewater as its original claim.

In this regard, the plaintiff argued that among the unpaid amount of wastewater rights, the amount equivalent to 50 million won for illegal wastewater facilities that ○○○ shall succeed to, and the amount equivalent to 30 million won for wastewater treatment charges, the plaintiff prepared a loan certificate as above, but there is insufficient evidence to acknowledge it.

3) In light of the aforementioned various circumstances, it is difficult to view that there is clear and acceptable counter-proof evidence that the testimony of the witness ○○○○ and the witness Kim○, the first instance court witness Kim○, and the remaining evidence that the Plaintiff is carrying out, alone, to the effect that the unregistered buildings or facilities of this case also contain a special agreement as if they were included in the subject of KRW 400 million with wastewater right, in order to find the Plaintiff’s claim for purchase price more favorable than the Plaintiff’s claim, there is no clear and acceptable counter-proof to deny the contents of the above written disposition (for all the aforementioned witnesses, it is difficult to accept the Plaintiff’s assertion that the above special pharmacist erred by mistake, in light of the fact that the Plaintiff testified to the effect that the parties to the contract had prepared the special agreement in relation to the process of preparing the contents of

4) However, in calculating the transfer value of the instant factory, unregistered buildings, equipment, and waste water rights, the Defendant considered total of KRW 00,000,000, and calculated KRW 00,000 as the acquisition value calculated based on the Plaintiff’s appraisal value at the time of acquiring the instant factory and unregistered buildings subject to taxation, and calculated the transfer value of the instant building based on the evidence, evidence Nos. 5, 6, 8, 11, 12, and 21, and the Defendant calculated the transfer value of the instant unregistered building among the remaining parts of the building containing the instant unregistered building at the time of calculating the transfer value of the instant unregistered building in accordance with the aforementioned evidence, evidence Nos. 5, 6, 8, 12, and 21, the Defendant did not consider the Plaintiff’s capital portion (see, e.g., complaint, etc., KRW 00,000, 000) and the Plaintiff’s capital portion (see, e., Supreme Court Decision 200, supra).