The transfer value in the stamp contract shall not be recognized as the actual transaction value.

In light of the fact that the transfer value under the approval agreement of a sales contract cannot be recognized as the actual transaction value, the reported transfer value is recognized as the actual transaction value in light of the statement of the real estate broker, the details of payment, and the Plaintiff

Article 98 of the Income Tax Act, Article 14 of the Framework Act on National Taxes

Seoul Administrative Court 2013Gudan11027

○○ Kim et al.

○ Head of tax office

May 9, 2016

May 30, 2016

1. On October 1, 2012, the part of the disposition imposing capital gains tax on Plaintiff KimA, which was rendered by the head of the tax office 00, exceeds KRW 000 among the disposition imposing capital gains tax on Plaintiff KimA for the year 2008, and the part that exceeds KRW 00 of the disposition imposing capital gains tax on Plaintiff YellowB on October 1, 2012 by the head of the tax office 00 shall be revoked.

2. Each of the plaintiffs' remaining claims is dismissed.

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

The imposition of KRW 000 of the transfer income tax corresponding to the year 2008 by the head of the Gu-ro Tax Office against Plaintiff KimA on October 1, 2012 and the imposition of KRW 000 of the transfer income tax corresponding to the year 2008 by the head of Sung Dong Tax Office against Plaintiff YellowB on October 1, 2012 shall be revoked.

1. Details of the disposition;

A. The Plaintiffs jointly owned (hereinafter “the instant real property”) No. 000 ○○○○○ 0000 (hereinafter “the instant real property”) in Yangcheon-gu Seoul (hereinafter “the instant real property”) and transferred on April 24, 2008 to KimCC, ED, and KimE (hereinafter “the instant sales contract”).

B. Around May 27, 2008, Plaintiff KimA submitted to the director of the tax office of 00; Plaintiff YellowB to the director of the tax office of 00; the director of the tax office of 4,90,595,444 won of the acquisition value of the instant real estate; the transfer value of KRW 5,000,000,000 of necessary expenses (mediation commission); and the transfer income amount of KRW 50,00,000,000 of the necessary expenses; and the transfer income amount of KRW 40,595,444 won.

C. After having conducted a field investigation of the transfer income tax on the instant real estate, the Defendants determined the transfer value of the instant real estate at KRW 5,700,000,000, and on October 1, 2012, Defendant 00 the head of the tax office issued a correction and notification of KRW 000 of the transfer income tax for the Plaintiff KimA in 2008, and Defendant 00 of the tax office’s head of the tax office issued a correction and notification for the Plaintiff YellowB in 2008 (hereinafter “instant disposition”).

D. The Plaintiffs were dissatisfied with the instant disposition and filed a request for review with the Commissioner of the National Tax Service on December 6, 2012, but the said request for review was dismissed on March 5, 2013.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, and 20, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiffs' assertion

The transfer value of the instant real estate is KRW 5 billion as originally reported by the Plaintiffs, including the amount omitted at the time of the initial declaration by the Plaintiffs, and KRW 500,000,000,000,000,000,000, which the buyers agreed to acquire.

2) The defendants' assertion

In light of the fact that the sale price under the approval seal contract on the instant real estate is KRW 5.7 billion, the actual transaction price of the instant real estate is KRW 5.7 billion, in view of the fact that the circumstances in which the Plaintiffs initially reported are more than the transfer price of KRW 5.7 billion, etc.

B. Actual transaction price of the instant real estate

1) Whether the sales price under the approval agreement of the instant sales contract conforms to the substance of the sales price

Unless there are special circumstances, the Claimant is presumed to have been prepared in accordance with the sales contract between the parties, and that the contract was prepared differently from the actual ones (see, e.g., Supreme Court Decision 93Nu2353, Apr. 9, 1993). However, according to each entry of No. 11-1 and No. 2, according to the report of real estate transaction contract concerning the instant sales contract made on April 24, 2008 (hereinafter referred to as the “report of this case”), it is recognized that 5.7 billion won (10 million won, intermediate payment, balance 200 million won, and 5.4 billion won) is stated in the report of real estate transaction, and it is recognized that there is no dispute over the existence of a real estate sales contract (the existence of dispute between the parties itself) with the seal of approval from the head of Yangcheon-gu as to the instant sales contract of this case as to the real estate transaction report of real estate transaction.

Therefore, the plaintiffs' assertion that the actual transaction price of the instant real estate was not KRW 5.7 billion should be proved. In light of the following circumstances, it is reasonable to view that the sales price of the instant sales contract is not KRW 5.7 billion, unlike the transaction price stated in the instant transaction report and the seal of approval agreement submitted and received along with the report, and the sales price of the instant sales contract is not KRW 5.7 billion.

① The Plaintiffs established MineGGGG Co., Ltd. (hereinafter referred to as “GGG”) and placed the instant real estate in the management difficulties while operating the sports center in the name of “Y0ex” (the cumulative deficit by 2008 reaches KRW 932,234,00), and it seems that the instant real estate was transferred for the purpose of obtaining capital gains.

② As part of the KimCC and the Plaintiff YellowB’s early operation of the instant real estate, YK actively participated in the conclusion of the instant sales contract as an agent of DoD and KimE, while proposing investment for the operation of the health club in the instant real estate, and YK took part in the conclusion of the instant sales contract as a witness in this court, and YK took part in the instant sales contract until May 6, 2008. At that time, Y testified that the instant approval seal agreement was written or the instant sales contract was not entered, and that the instant real estate was set at KRW 5 billion and the instant sales contract was executed.

③ The Plaintiffs were the genuine sales contract concerning the instant sales contract, and submitted as evidence the evidence the evidence No. 10 (hereinafter “instant contract”) that stated the sales price of KRW 5 billion. However, the authenticity of the entire document is presumed to have been duly formed on the grounds that there is no dispute over the signature and seal of the instant contract as a witness in this court.

④ In addition, in the case of DoD, there is no seal affixed on the instant transaction report, and the above transaction report and the seal affixed on the power of attorney testified that the so-called "the so-called Dokdokdok" made by Dok, instead of the witness, it is confirmed that each of the above seals is clearly different from the seal affixed on the instant transaction contract.

⑤ According to the instant contract, the method of paying the purchase price of KRW 5 billion is stipulated to substitute for the payment of the down payment of KRW 100 million until January 16, 2008 (contract date), the intermediate payment of KRW 200 million until March 6, 2008, and the remainder of KRW 4.7 billion until March 31, 2008, and the remainder of KRW 3.7 billion out of the remainder of KRW 4.7 billion shall be paid until March 31, 2008, and the remainder of KRW 3.7 billion out of the remainder of KRW 4.7 billion shall be deemed to have been paid as the price of the instant sales contract, excluding the purchase price of KRW 3.7 billion, which is the collateral security debt of the instant real estate (hereinafter “instant existing collateral security debt”). In light of the following circumstances, even though the buyer failed to observe the date, it appears that only the remainder of KRW 1.3 billion, excluding the above collateral security debt, was paid as the price of the instant sales contract.

The Commission paid KRW 300,000,000,000, out of KRW 3770,000,000,000, which was paid by ED and Kim EE as investment, as KRW 100,000,000 (the unpaid KRW 70,000,000,000,000, not paid to the Plaintiffs out of the money received from ED and KimE).

On April 24, 2008, when KimCC transferred the title of ownership of the instant real estate from the Plaintiffs, it received a loan of KRW 4.5 billion from the National Bank of Korea as collateral. Of them, KRW 3.7 billion was disbursed for repayment of KRW 3.7 billion of the existing collateral security obligation of this case, and KRW 600 million out of the remaining money was deposited into the bank account of Plaintiff KimA as part of the remainder.

B. According to the first clause of the first clause, the first clause of the first clause of the second clause of the sales contract, which is the first clause of the first clause of the first clause of the first clause of the first clause of the first clause of the first clause of the first clause of the first clause of the first clause of the first clause of the first clause of the first clause of the first clause of the second clause of the first clause of the second clause of the second clause of the second clause of the first clause of the second clause of the second clause of the second clause of the second clause of the first clause of the first clause of the second clause

㉣ 그런데 김CC은 2008. 4. 28.까지 원고 김AA에게 4억 원을 지급하지 못하게 되어, 2008. 4. 30. 지급기일을 2008. 5. 9.까지로 연장하는 내용의 현금보관증을 작성하여 이를 원고 김AA에게 교부하였는데, 김CC이 2008. 5. 9.까지 4억 원을 지급하지 않자 원고 김AA은 2008. 5. 14.경 김CC을 상대로 서울남부지방법원 2008카단70830호로 피보전권리 매매잔금 4억 원으로 하여 부동산가압류신청을 하였다.

In light of the application for provisional seizure against real estate prepared by the Plaintiff KimA at the time of the application for provisional seizure against the said real estate, the Plaintiff’s creditor (Plaintiff KimA) and YellowB stated that the instant real estate was sold to the debtor (However, the transaction report amount shall be KRW 5.7 billion for the buyer’s convenience) and the DoD, and that the said real estate was sold to the debtor and the DoD, and the said provisional seizure was (post).

On May 29, 2008, the above court made a decision of provisional attachment against real estate on the provisional attachment on the ground of the above provisional attachment, and immediately thereafter, KimCC paid the plaintiff KimA KRW 100 million on June 2, 2008 and KRW 300 million on June 5, 2008, and the plaintiff KimA cancelled the provisional attachment against the above real estate on June 10, 2008 (On the other hand, the plaintiff KimA applied for provisional attachment against the LAL, the husband of the KimCC, with the above KRW 400 million on the preserved claim (the plaintiff KimA applied for provisional attachment against the LA, the husband of the KimCC as the preserved claim).

The payment of any balance has not been completed until April 24, 2008, as stated in the instant transaction report.

6) The instant contract in which the purchase price is five billion won is indicated as follows: (a) appears to have been difficult to obtain a loan from a financial institution to pay the money of KRW 3.7 billion from the financial institution; (b) Yellow K testified testified that “GinCC was acting in so-called financial hub for the purpose of additional loan in this court; (c) evidence No. 12-2, “A” stated that the actual purchase price of the instant sales contract shall be five billion won or registration, and five billion won or more for banking convenience, and that if the transfer price is added, ICC shall be responsible for and paid the transfer price; and (d) the above signature and seal was testified to the effect that the above signature and seal was made (On the other hand, although the witnessCC signed and sealed in blank, it appears to have been one of the above promise, it is difficult to believe that the above promise was the party to the instant sales contract, and that there is a lack of possibility that ICC will receive the balance of the loan and the loan from the financial institution under the existing contract of this case.

2) Determination of actual transaction price of the instant real estate

Therefore, as long as the portion of the purchase price of the approval agreement related to the instant sales contract was clearly stated differently from the actual, and its presumption power was reversed, the tax authority bears the burden of proving the facts of taxation requirements in the tax disposition revocation lawsuit. Therefore, the Defendants must prove that the actual transaction price of the instant sales contract exceeds KRW 500,000,000,000, in which the Plaintiffs are the plaintiffs.

In this regard, the defendants asserts that the following amounts should be included in the sales price of the sales contract of this case:

① First of all, it argues that the sum of the sum received from D and KimE as down payment and intermediate payment should also be included in the purchase price. However, as seen earlier, it is only recognized that the sum received by Y from D and KimE is KRW 370 million, and the sum paid to the Plaintiffs is merely KRW 300 million, and there is no evidence to acknowledge that 100 million of the Defendants’ assertion was paid to the Plaintiffs.

② Next, in 4.5 billion won loaned by KimCC from the National Bank Co., Ltd., the remaining KRW 200 million, excluding the Plaintiff’s existing collateral security debt KRW 3.7 billion and the amount of KRW 6.7 billion recognized to have been paid by the Plaintiffs, was also claimed that the purchase price of the instant real estate was paid to the Plaintiffs. However, there is no evidence to acknowledge this. In addition, in the case of the Defendants’ assertion, KimCC paid KRW 80 million out of KRW 4.5 billion (= KRW 4.5 billion – KRW 3.7 billion) to the bank account of Plaintiff Kim Yong-A, and paid the remaining KRW 200 million to the Plaintiffs in cash or in a separate account. However, it is difficult to obtain the Defendants’ self-payment in the instant case where there

③ In light of the overall purport of the statement and pleading of evidence Nos. 10 and 23 (including the serial number) on behalf of the Plaintiffs, the purchaser, KimCC et al., and two others, from March 18, 2007 to April 24, 2008, they asserted that the amount should be included in the purchase price, since the agreement on the amount of KRW 3.7 billion as to the existing collateral security obligation of this case and the interest rate of KRW 257,018,981 was paid from April 24, 2008. Rather, according to the following purport, it is recognized that Plaintiff KimA paid the interest of KRW 3.7 billion to the existing collateral security obligation of this case as of April 24, 2008.

④ Since KimCC et al. and two members of the sports center succeeded to KRW 223,680,00,000 in total amount of the security deposit to the members of the sports center operated in the real estate of this case, the above money should be included in the actual transaction price of the real estate of this case. However, the following circumstances acknowledged by the purport of Gap evidence Nos. 10 and 21 (including the serial number) and the whole pleadings as follows. Paragraph 7 of the special agreement of this case at the time of the sales contract of this case agreed that the above members filed a lawsuit to return security deposit against the plaintiffs (Seoul 00, 2006Gahap000) and the provisional attachment order of this case, prior to the conclusion of the sales contract of this case on August 16, 2007, which is the date of the conclusion of the sales contract of this case, the above members' loss was already declared in the lawsuit to return security deposit, and there is no evidence to acknowledge that the above judgment against the Defendants should be included in the sales contract of this case.

3) Sub-decisions

Therefore, the actual transaction price of the instant real estate as the purchase price under the instant sales contract shall be KRW 5 billion (=5 billion in the purchase price + KRW 5 billion in the lease deposit + KRW 50 million in the lease deposit).

(c) Calculation of legitimate capital gains tax;

The part exceeding KRW 340,061 in the case of Plaintiff KimA, which exceeds KRW 340,061, among the dispositions of this case, is unlawful in the case of Plaintiff YellowB.

3. Conclusion

Therefore, the plaintiffs' claims are justified within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.