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.

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 to impose capital gains tax by calculating the conversion value at the time of calculating the acquisition

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

2014Guhap21777 Revocation of Disposition of Imposing capital gains tax

Park AA

○ Head of tax office

January 15, 2015

February 5, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of OOO(including additional tax) of capital gains tax for the year 2011 against the Plaintiff on November 1, 2013 shall be revoked.

1. Details of the disposition;

A. On November 1, 2005, the Plaintiff acquired 3,337 shares (hereinafter referred to as “the instant land,” and hereinafter referred to as “the instant shares”) from OB, OB, O-dong 959 PO2,608 square meters, from OB, and transferred the instant shares to ○○○○○○ Co., Ltd. on June 2, 201.

B. The Plaintiff, while filing a preliminary return of the tax base of capital gains on the instant share, claimed that the acquisition value is the actual transaction value under the real estate sales contract, but the Defendant calculated the acquisition value as the conversion value, based on the reason that the acquisition value is not verified by failing to submit specific evidentiary documents for payment of the price for the instant share acquisition, and notified the Plaintiff on November 1, 2013, as to November 1, 2011 (hereinafter “instant disposition”).

C. Accordingly, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service on February 21, 2014, but the Plaintiff’s request was dismissed on May 12, 2014.

Facts that there is no dispute with recognition, Gap evidence 1 through 4 (including branch numbers; hereinafter the same shall apply), Eul evidence 1 and 2, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff had a loan claim against KimB, the former owner of the instant share, but agreed to pay the Plaintiff the instant share in lieu of paying the debt, as KimB failed to repay it, and accordingly, the Plaintiff transferred the instant share to the Plaintiff. At the time, it can be clearly recognized that the actual acquisition value of the instant share is an OO based on the entry of the real estate sales contract (Evidence A No. 4-1) prepared by the Plaintiff and KimB at the time, and thus, the instant case does not constitute “the case where it is impossible to recognize or confirm the actual transaction value at the time of acquisition” under Article 114(7) of the Income Tax Act, but it is unlawful for the Defendant to calculate the acquisition value of the instant real estate as the conversion value not the actual transaction value but the calculation of transfer margin

2) Even if it is impossible to confirm the actual transaction value of the instant shares, the case was trading around August 23, 2005 with respect to 902 OO-dong 1,785 square meters (hereinafter “the instant land to be compared”) near the instant land, and thus, the Defendant should calculate the transaction example and calculate the gains pursuant to Article 176-2(3)1 of the Enforcement Decree of the Income Tax Act, and calculate the acquisition value as the conversion value, and the instant disposition is unlawful in this respect.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to the assertion that the actual acquisition value of the instant shares is an OOwon

A) The actual transaction price, which is the basis for calculating gains on transfer, is not a general market price that reflects the objective exchange value, but a actual agreement is made for the actual transaction price itself or at the time of the transaction (see, e.g., Supreme Court Decisions 97Nu6629, Feb. 9, 199; 2006Du7171, Apr. 26, 2007); and the value objectively perceived by a sales contract or other evidentiary documents. Meanwhile, when another benefit is actually provided in lieu of the original obligation, the real estate is transferred for consideration and its payment is deemed to have been made. Thus, if the transfer of the asset is made in accord and satisfaction, the original obligation should be the actual acquisition price of the asset concerned (see, e.g., Supreme Court Decision 97Nu19809, Mar. 10, 1998). In such a case, it is reasonable to prove that the claimant for payment in kind bears the responsibility of proving the amount of the actual transaction price.

B) According to the above legal principles, the real estate sales contract prepared between the plaintiff and KimB (hereinafter referred to as "the sales contract of this case") entered the real estate sales contract prepared between the plaintiff and KimB as OOB, but it is acknowledged that the purchase price of the share of this case is stated as OOO. On the other hand, if the plaintiff transferred the share of this case to KimB as a substitute payment, he shall be deemed as the actual transaction price of the share of this case, in view of the following circumstances: ① if the plaintiff was transferred the share of this case from OB as alleged, the amount of the secured debt under the name of OB Saemaul without stating the specific time and amount of the loan; ③ there is no objective data such as supporting documents or financial documents that can verify the existence of the loan claim of this case from 10O-200, 300,000,0000,000,0000,000,0000,000,000,000,000,00.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

2) Determination on the assertion that the acquisition value should be calculated as a transaction example

A) According to Articles 96(1), 97(1)1, and 114(7) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009), and Article 176-2(3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21301 of Feb. 4, 2009), the acquisition value shall be the actual transaction value required for the acquisition of assets. However, where the actual transaction value at the time of acquisition is not verifiable by books or other documentary evidence, the acquisition value shall be the actual transaction value required for the acquisition of assets.

shall be determined in order.

B) In this case, according to the statement No. 5-1 and No. 2 of the Plaintiff’s land acquisition date of this case, the land compared to this case on August 23, 2005, which was not more than 3 months from November 1, 2005, which was the date of the Plaintiff’s acquisition of this case’s land, may be recognized that the land was transferred to ParkD for purchase amount, but the following circumstances, which can be recognized by the aforementioned evidence, are: (i) although the land of this case is located in the luxal calendar, the land of this case is located in the luxal calendar, but is located in the luxal calendar, and is not adjacent to each other; (ii) the value of the land of this case’s comparative land at the time of the transfer of the land of this case is an Oluxal won; and (iii) the land of this case and the land of this case were transferred to ○○ on June 2, 2011.

In the case of OOO won and the instant comparative land, there is a difference of two times or more as OOO won per square meter, and ④ Ultimately, the instant comparative land cannot be calculated on the basis of the transfer value of the instant comparative land because it is difficult to view it as an asset having the identity or similarity with the instant land. In light of the fact that there is no transaction example or appraisal value with respect to the instant comparative land, it is lawful to impose capital gains tax by calculating the acquisition value of the instant real estate as the conversion value in accordance with the relevant statutes in calculating the acquisition value of the instant equity, in accordance with the relevant statutes.

C) Therefore, the Plaintiff’s assertion on this part is without merit.

3. Conclusion

If so, the plaintiff's claim is without merit, and it is dismissed. It is so decided as per Disposition.