Examination-transfer 2014-0180 ( December 02, 2014)

The market value of the instant kindergarten building transferred to his child shall be deemed the retroactive appraisal value.

The market price of the kindergarten building of this case transferred to his child shall be deemed the retroactive appraisal value and the portion exceeding the legitimate tax amount shall be revoked illegally.

Article 101 of the Income Tax Act by Wrongful Calculation

2015Guhap5789 Revocation of Disposition of Imposing capital gains tax, etc.

JAA et al.

O Head of the tax office and one other

Some of the national holidays

February 23, 2017

1. The portion exceeding 146,854,653 won among the disposition of imposition of capital gains tax (including additional tax) for 2012 on February 24, 2015 by the director of the tax office on the Plaintiff JinCC (including additional tax), the portion exceeding 142,061,316 won among the disposition of imposition of capital gains tax for 2012 on the Plaintiff JinCC (including additional tax), the portion exceeding 339,309,950 won, and the portion exceeding 146,854,653 won among the disposition of imposition of capital gains tax for 2012 on the Plaintiff KimB, and the portion exceeding 142,061,316 won among the disposition of imposition of capital gains tax for 207,879,09,90 won on the Plaintiff JinCC (including additional tax), the portion exceeding 65,651,353 won among the disposition of imposition of capital gains tax for 2012 on the Plaintiff KimB (including additional tax on the penalty tax on the Plaintiff 313047.7.94.7.

2. The plaintiffs' respective remaining claims against the defendants are dismissed.

3. Of the costs of lawsuit, 2/5 of the part arising between Plaintiff JA, KimB and Defendant OB is borne by Plaintiff JA, KimB, and the remainder is borne by Defendant OO head of the tax office. 3/10 of the part arising between Plaintiff JCC, KimD and Defendant XX head of the tax office is borne by Plaintiff JCC, KimD, and the remainder is borne by Defendant JCC, KimD, respectively.

Cheong-gu Office

The imposition of KRW 339,309,950, and KRW 340,58,690, and KRW 340,58,690, and KRW 207,879,09,09, and KRW 371,90,380, and KRW 371,380,00, which were imposed on Plaintiff JCC on Plaintiff JinCC on February 24, 2015 by the head of the competent tax office, and the imposition of KRW 340,58,690, respectively, shall be revoked on Plaintiff JinCC on August 5, 2014.

1. Details of the disposition;

A. Plaintiff JA and KimB are married, and Plaintiff JA and JB are married, Plaintiff JA and KimB’s married, and Plaintiff JB is the husband of Plaintiff JA and KimB, and Plaintiff JB is the husband of Plaintiff JA and KimB.

B. The apartment site in Seoul OO-dong OOO 32,262.8m2 (hereinafter “the apartment site in this case”) is an apartment house (hereinafter “the apartment site in this case”) and its appurtenant facilities, and a housing complex under the Housing Act used as a site for welfare facilities.

C. On April 15, 1998, Plaintiff JA, KimB, and JinCC jointly purchased 320,000,000,000 won in total and completed the registration of ownership transfer on August 13, 1998, since the site of this case was part of the site of this case where the site of this case was part of the apartment site of this case, it was converted according to the size ratio and co-ownership registration in accordance with the unit area.

D. Thereafter, on February 10, 2012, Plaintiff JinA shares 1/3 of the instant real estate to Plaintiff JinCC

120,000,000 won was transferred, and on June 27, 2012, Plaintiff KimB transferred 1/3 shares of the instant real estate (hereinafter collectively referred to as “each shares of this case”) to Plaintiff JinCC in KRW 20,00,000. Accordingly, Plaintiff JinCC owned the instant real estate solely.

E. On September 20, 2012, Plaintiff JinCC donated the instant real estate to Plaintiff KimD.

F. Meanwhile, at the time of the transfer of each of the instant shares, Plaintiff JAB reported and paid capital gains tax of KRW 120,00,000 and KRW 106,666 to Defendant OB at the time of the transfer of each of the instant shares. Defendant OB’s transfer of each of the instant shares to Plaintiff JA and KimB at a lower price than the market price of KRW 106,66,6666, and KRW 25 of the former Income Tax Act (amended by Act No. 12169, Jan. 1, 2014; hereinafter the same shall apply) and the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 27829, Feb. 3, 2017; hereinafter the same shall apply) at KRW 165,00,000 and KRW 2615,00,000,000 at the time of the transfer of KRW 271,516,000,00.

G. Defendant XX director of the tax office, on August 5, 2014, issued a revised and notified respectively of KRW 371,190,380 of the gift tax (including additional tax) on February 10, 2012 and the gift tax (including additional tax) on June 27, 2012 on the ground that Plaintiff JinCC acquired each of the instant shares at low price and received profits from Plaintiff JinCC’s transfer at low price from Plaintiff JinA and KimB, a person with a special relationship, under Article 35 of the former Inheritance Tax and Gift Tax Act.

H. At the time of receiving the instant real estate from the Plaintiff JinCC, Plaintiff KimD deemed the market price of KRW 360,000,000 (i.e., KRW 120,000,000 per 1/3 equity x 3) and did not pay gift tax by applying his spouse’s personal deductions. Defendant XX head of the tax office, not the market price of the instant real estate, but rather the 3,484,197,70 won based on the supplementary assessment method of the former Inheritance Tax and Gift Tax Act, deemed the 3,484,197,70 won according to the individual land price (including additional taxes) according to the supplementary assessment method of the former Inheritance Tax and Gift Tax Act, determined and notified Plaintiff JinD of KRW 1,365,91,30 on August 7, 2014 (hereinafter “each of the instant dispositions”).

I. The Plaintiffs were dissatisfied with each of the instant dispositions and filed a request for examination with the OO on October 15, 2014, but all of the requests for examination was dismissed on December 2, 2014. In addition, Plaintiff JA and KimB were dismissed on December 2, 2015.

4. 14. Requests for adjudgment from the Director of the Tax Tribunal, but all requests for adjudgment was dismissed on June 29, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Gap evidence 10, Gap evidence 12, Gap evidence 13, Eul evidence 1 through 5, and the purport of whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. Summary of the plaintiffs' assertion

The actual transfer value of the instant real estate between the Plaintiffs constitutes a legitimate price or market price under the relevant laws and regulations, and in particular, the Plaintiff JA and JB could recover the initial investment amount due to the transfer of each of the instant shares and avoid losses and unnecessary tax burden due to the deficit in the operation of the instant kindergarten. As such, the transfer of each of the instant shares between the Plaintiff JA, JB, and JCC cannot be deemed an abnormal transaction with poor economic rationality, and thus, the provisions concerning the wrongful calculation omission should not be applied.

Even if the Defendants denied the actual transaction value of the instant real estate between the Plaintiffs and applied the market price under the former Inheritance Tax and Gift Tax Act when assessing the transfer value or gift value, the Defendants cannot apply the supplementary evaluation method under the former Inheritance Tax and Gift Tax Act due to lack of evidence by the Defendants as to the difficulty in calculating the market price. Even if the above supplementary evaluation method can be applied, deeming the individual land price of the instant apartment site as the individual land price of the instant kindergarten site, which includes not only the instant kindergarten site but also the instant apartment and commercial building site, entirely differs from the formation factors of the land price as well as the instant apartment site, to the individual land price of the instant apartment site, violates the principle of substantial taxation. In addition, in assessing the market price of the instant kindergarten site, the appraiser unfairly calculated the retroactive appraisal value at the wind that erroneously selects the normal transaction cases to correct the market price

Therefore, each of the dispositions in this case, on the basis of the officially assessed individual land price pursuant to the supplementary assessment method under the former Inheritance Tax and Gift Tax Act, which is not the actual transaction value regarding the transfer and gift of the instant real estate between the Plaintiffs, is unlawful.

B. Relevant statutes

Attached Form 2 shall be as listed in attached Table 2.

C. Determination

1) Plaintiff JA, KimB, JCC part

A) Contents of the relevant laws and regulations

Article 101 (1) of the former Income Tax Act provides that "where an act or calculation by a resident with a transfer income is deemed to reduce the tax burden on such income by means of a transaction with the resident or a specially related person, the amount of income in the relevant taxable period may be calculated regardless of the resident's act or calculation." Paragraph (5) of the same Article provides that "the scope of the specially related person under paragraph (1) and other matters necessary for wrongful calculation shall be prescribed by Presidential Decree." Article 98 (1) of the former Enforcement Decree of the Income Tax Act provides that "the person by blood within the sixth degree of relationship (Article 1-2 (1) 1 of the Enforcement Decree of the Framework Act on National Taxes)" and Paragraph (3) of the same Article provides that "if it is deemed that the amount of tax burden is reduced unreasonably, the amount of income shall be calculated at a price higher than the market price or the amount of property transferred from the person with a special interest at a price lower than the market price" and Paragraph (5) of the same Article provides that "the price shall be determined by transfer before or after acquisition by transfer within the market price."

Meanwhile, the main text of Article 60(1) of the former Inheritance Tax and Gift Tax Act provides that "the value of the property on which the inheritance tax or gift tax is levied shall be based on the market price as of the date of commencing the inheritance or the date of donation (hereinafter referred to as "date of appraisal"), and Paragraph (2) of the same Article provides that "the market price under the provisions of paragraph (1) shall be the value generally deemed to have been established when a free transaction is made between many and unspecified persons, and shall include the expropriation price, public sale price, appraisal price, and appraisal price, as prescribed by Presidential Decree," and Paragraph (3) of the same Article provides that "if it is difficult to calculate the market price in the application of Paragraph (1), it shall be based on the method under Articles 61 through 65 in consideration of the type, size, transaction situation, etc. of the relevant property." Article 61(1)1 of the former Inheritance Tax and Gift Tax Act provides that the appraisal of the property shall be the officially assessed land price under the Act on Publication and Appraisal of Real Estate, and subparagraph 2 of a building shall be calculated and publicly announced by the Commissioner of

Article 49(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 25195, Feb. 21, 2014; hereinafter the same) provides for "the amount recognized as the market price, as prescribed by Presidential Decree, such as the expropriation price, public auction price, appraisal price, etc." under Article 60(2) of the Act means the amount confirmed by the following provisions of the United Nations in cases of sale, appraisal, expropriation, auction, or public auction (three months in cases of donated property) for a period not exceeding six months before or after the base date of appraisal (three months in cases of donated property). In addition, where there is a transaction fact with a related party, the transaction price (excluding cases where the transaction price is deemed objectively unfair due to transactions with a related party). (2) Where there is an appraisal price assessed by a reliable appraisal institution prescribed by Ordinance of the Ministry of Finance and Economy with respect to the relevant property, the average appraisal price thereof, and (3) where there is a expropriation, auction or public auction price

B) the requirements for the denial of wrongful calculation and the burden of proof

Under the Income Tax Act, in a case where a resident’s act of wrongful calculation is deemed to have avoided or reduced tax burden by abusing the forms of transaction listed in each subparagraph of Article 98(2) of the Enforcement Decree of the Income Tax Act without a reasonable method by a person with a special relationship, the said act is deemed to have been denied by the taxation authority and deemed to have income objective and reasonable by the methods prescribed in the laws and regulations. In light of the economic person’s viewpoint, it is limited to the case where it is deemed that the economic rationality was neglected due to the act of wrongful and unreasonable calculation. Determination of the existence of economic rationality is not just based on the transaction’s transaction’s transaction’s transaction’s transaction’s transaction’s transaction’s transaction’s transaction’s transaction’s transaction’s transaction’s behavior with a person with a special relationship, but rather on the basis of whether the transaction’s transaction’s economic rationality is unfair in light of sound social norms or commercial practices (see, e.g., Supreme Court Decision 2005Du15287, May 12, 2005).

According to the above relevant laws and regulations, if a resident transfers real estate to a specially related person below the market price, the denial of wrongful calculation can be applied. Here, whether it constitutes the denial of wrongful calculation, and if it constitutes the denial of wrongful calculation, the "market price of real estate as of the basis of taxation" means the market price under Article 60 (2) of the former Inheritance Tax and Gift Tax Act. In cases where it is difficult to calculate the market price as above, it means the publicly assessed individual land price of real estate according to the supplementary evaluation methods under Articles 60 (3) and 61 (1) 1 and 2 of the same Act. In addition, in order to deny wrongful calculation, it is necessary to first claim and prove the "market price of real estate, which serves as the basis of whether it constitutes the denial of wrongful calculation," and the burden of proof is asserted against the tax authority that claims the denial of wrongful calculation (see, e.g., Supreme Court Decision 2003Du15287, May

C) Justifiable market price of each of the instant shares

(1) In order to determine whether the transfer of shares in this case constitutes the subject of the application of the denial of wrongful calculation, first of all, the reasonable value or market price of each share in this case should be calculated. If the actual transfer value of each share in this case between the plaintiff JA, KimB and the plaintiff JinCC can be viewed as a justifiable value that can be acceptable under the tax law, it shall be so determined. In other cases, if there is no value, the value generally recognized as being established when a transaction is made freely between many and unspecified persons, and if there is no value, the value assessed according to objective and reasonable methods, such as appraisal price, shall be considered as the market price, and if there is no value, it is reasonable to view

(2) First, taking into account the following: (a) the actual transfer value of each of the instant shares between the Plaintiff JA, KimB and JACC, the health care room for the actual transfer value of each of the instant shares; (b) the background of the instant disposition; (c) the evidence Nos. 22-1, 2, and 24; and (d) the evidence Nos. 25-1, 2, and 11; and (c) the court’s entrustment of appraisal to the EEEE Assessment Corporation (hereinafter “EE Assessment Corporation”); and (d) the overall purport of the pleadings and arguments by taking into account the following: (a) Plaintiff JA, KimB, and JB, around April 1998, 320,000 won ( approximately KRW 106,66,6666 won per 1/3 equity share); and (c) the co-ownership share registration was completed; and (d) the remaining 1/3 equity share registration was completed; and (e) the Plaintiff on February 6, 2014, respectively.

(2) The 198 officially assessed individual land price of the instant real estate is approximately KRW 1,543,00,000 ( approximately KRW 514,000,000 per 1/3 equity interest), the officially assessed individual land price of the year 2012 is approximately KRW 3,395,00,000 ( approximately KRW 1,131,00,000 per 1/3 equity interest). ③ Since the assessed individual land price of the instant real estate of the instant real estate of the year 2012 exceeds KRW 1,80,000,000, it is recognized that the assessed individual land price of the instant real estate of the instant real estate of the instant case was transferred according to the aforementioned facts and circumstances, i.e.,, the actual assessed individual land price of the instant real estate of the instant real estate of the year 2012, the actual assessed individual land price of the Plaintiff of the instant real property of the year 2012, the actual assessed land price of the instant real transaction value of the Plaintiff of the first 1,2198.

Then, it is difficult to find clear data about the transaction value of the kindergarten of this case and about the transaction value of neighboring real estate when a free transaction is made between many and unspecified persons, because it is difficult to find out clear data about the transaction value of the kindergarten of this case and the transaction value of neighboring real estate.

Finally, in a case where there are appraisal values assessed by a reliable appraisal institution within 3 months before and after the transfer date as stipulated by the Ordinance of the Ministry of Finance and Economy, the average amount of the appraisal values may be based on the appraisal values, but this case does not exist any such appraisal values. However, Article 49(1) of the former Enforcement Decree of the Inheritance Tax and Gift Tax Act by delegation under Article 60(2) of the former Inheritance Tax and Gift Tax Act is merely an example of a representative case that can be seen as the market price. Therefore, inasmuch as the concept includes the values appraised in an objective and reasonable manner, the appraisal values of the reliable appraisal institution may be deemed as the market price, and the same holds true even in a case where the appraisal values are calculated by retroactive appraisal (see Supreme Court Decision 200Du5098, Aug. 21, 200). In light of these legal principles, it is necessary to examine whether the entrustment value of appraisal with respect to the EEE appraisal corporation can be deemed as the market price as the values appraised by objective and reasonable methods.

(3) Comprehensively taking account of the following facts: Gap evidence No. 16, EE-Evaluation Corporation's appraisal results and the purport of the entire appraisal results of this Court's appraisal of the real estate of this case, appraiser selected 1,17.5 square meters (hereinafter "the reference land of this case") which is adjacent to the real estate of this case as a comparative standard site; 2,50,000 won of the reference land of this case as of January 1, 2012; 2,000 local factors were considered; 1,00,000 won of the reference land of this case; 20,000 won of the reference land of this case; 20,000 won of the reference land of this case; 20,000 won of the reference land of this case; 20,000 won of the reference land of this case; 20,70,000 won of the reference land of this case were compared to the market price of this case; 20,000 won of the reference land price of this case.

(4) As to this, Plaintiff JA, KimB, JCC, and the Defendants asserted to the effect that the retroactive appraisal value of this Court was not assessed in an objective and reasonable manner on the following grounds:

(A) Plaintiff JA, KimB, JCC asserts that it is unlawful to select the instant reference land as non-intersections of the instant kindergarten site. While the scope of new construction and alteration of the purpose of use of the instant kindergarten site is considerably limited to apartment welfare facilities, the instant reference land is located within Class III general residential areas, such as the upper limit of the building-to-land ratio, 50-60% of the standard land ratio, 200-250% of the floor area ratio, 200-250% of the secondary residential facilities, hospitals, retail markets and stores, factories, etc., and the relevant reference land is located within Class III general residential areas, which can be used as lots of buildings for various purposes, such as factories, such as the upper limit of the building-to-land ratio and floor area ratio, practical use, and specific use area of the instant kindergarten site, the Plaintiffs do not appear to have any significant difference between the above reference land and the instant standard land in light of the general residential area or other factors similar to those of the present case.

(B) The Defendants: (a) on the ground that an appraiser is located the same or geographically close to the real estate in this case; (b) notwithstanding that the officially assessed individual land price is merely 72% of the officially assessed individual land price of this case (2,500,000 won per square meter) on the ground that the appraiser is located in the same or geographical location as the instant real estate in the public law; (b) there is an error of law which unfairly lowers the appraised value of the instant real estate by applying the gap rate to 0.7% of the playground or slaughterhouse in consideration of individual factors and administrative factors again; (c) considering that the difference in the size of the instant land to be used in the instant case is less than 5% in light of the above evidence as well as the overall purport of oral argument, it is difficult to view that the appraisal value of the instant real estate is less than 5% of the instant standard land to be applied to the extent that it is difficult to change the size of the land’s use to the extent of 20% of the standard land-to-land-land area ratio within 5%.

(C) In addition, Plaintiff JA, KimB, JCC asserts that: (a) the appraiser selected a normal transaction example of △△△-dong △△△△△-dong land (price: KRW 3,908,00 per square meter; hereinafter “△△△-dong △△△△△-si land”) and revised the appraised value of the instant kindergarten site; (b) the instant kindergarten site is located in Class III general residential area; and (c) the price formation of the instant kindergarten site is entirely different from the instant kindergarten site due to the construction of multiple houses after the purchase and sale; (d) the appraiser selected △-dong △△-dong land as the trading case land of the instant kindergarten site. However, in light of the above evidence and the purport of the entire pleadings, the appraiser selected comparable transaction cases in terms of the instant kindergarten site, specific use area, and current use, etc.; (e) in the case of land and building transaction factors, the land price of △△-dong △△-dong land could not be determined as the land similar to the instant general residential area.

D) Whether the calculation constitutes the denial of wrongful calculation

In light of the following circumstances: (a) as to whether the transfer of each of the instant shares between Plaintiff JA, KimB, and Plaintiff JCC was abnormal due to a low-price transfer; and (b) as to whether the actual transfer price between the above Plaintiffs was considerably lower than the retroactive appraisal price or the ordinary kindergarten price, and the overall purport of the pleadings, the market price of each of the instant shares was at least 2 billion won in the case of a kindergarten with a capacity of 100 to 200,000, located in the Seoul Metropolitan area; (c) the number of the instant kindergarten was at least 120, but the number of the students in 2011 was at least 80, and the number of the students in 2012 was at least 98; (d) the above Plaintiffs received local tax reduction benefits as co-owners of the instant real estate used directly in a kindergarten; and (e) the actual transfer price between the above Plaintiffs was considerably lower than the normal transfer price of the instant shares; and therefore, (e) the Plaintiff’s assertion that the transfer price of each of the instant shares could not have been known.

E) Whether to impose additional tax

Under the tax law, additional taxes are administrative sanctions imposed in accordance with individual tax laws in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim. Such sanctions cannot be imposed in cases where there are justifiable grounds for not being able to cause the taxpayer’s failure to perform his/her duties, such as where there are circumstances that make it difficult for the taxpayer to be aware of his/her duties, or where it is unreasonable for the taxpayer to expect the performance of his/her duties, etc. (see Supreme Court Decision 2003Du13632, Jan. 27, 2005). Furthermore, additional taxes are designed to induce the taxpayer to pay taxes faithfully by the due date of return and payment, considering that the taxpayer has received financial benefits, and thus, they are administrative sanctions imposed in relation to the violation of the duty to pay taxes, even if they are not paid due to a difference in the valuation of the value of donated property, they cannot be viewed as excluding the subject of imposition of additional taxes, and cannot be deemed as legitimate reasons for the payment of taxes (see Supreme Court Decision 196.

With respect to the instant case, if Plaintiff JA, KimB, or JCC confirmed the relevant statutes, the actual transfer value of each of the instant shares could have been sufficiently known that the actual transfer value would be denied and that the transfer income tax or gift tax may be additionally imposed according to the market price, such as the appraisal price or the publicly assessed individual land price, if the actual transfer value of each of the instant shares was remarkably lower than the market price. Therefore, the grounds alleged by the said Plaintiffs alone cannot be deemed to have justifiable grounds. Accordingly, this part of the allegation by Plaintiff JA, KimB, and JCC is without merit.

F)the computation of a reasonable amount of tax

In imposing capital gains tax or gift tax, even if the tax authority assessed the value of the pertinent asset as officially assessed individual land price on the ground that it is difficult to calculate the market price at the time of the transfer or gift of the pertinent asset, if the market price at the time of closing argument in the lawsuit seeking revocation of the said taxation, it should be determined on the basis of the market price and whether the amount of the said taxation exceeds the reasonable tax amount. As seen earlier, the Defendants’ imposition of capital gains tax or gift tax on Plaintiffs JA, KimB, and JCC is erroneous in calculating the tax amount by regarding the officially assessed individual land price, which is not the retroactive appraisal value of this court concerning each of the instant shares, based on the retroactive appraisal value at the time of the transfer of each of the instant shares, as of the date of the instant transfer, the transfer income tax (including additional tax) for the Plaintiff JA for the year 2012 as the market price at the time of the instant transfer, and the said tax amount for the capital gains tax for the Plaintiff KimB for the year 2012 as the gift tax (including additional tax) for the above KRW 142,0616.36.6.37).

2) Plaintiff KimD parts

A) Details of the relevant legislation

According to the provisions of Article 60 of the former Inheritance Tax and Gift Tax Act, the general transaction value between third parties shall be deemed the market price, but where the transaction value is unclear, the market price shall be calculated in the order of the public sale price, appraisal price, individual

B) The reasonable market price of the instant real estate

Since it is reasonable to view that the market value of the instant real estate donated by Plaintiff KimD as the assessed value of the instant real estate by Plaintiff JCC is the retroactive assessed value by this court, the assertion by Plaintiff KimD and the head of XX tax office against this is without merit.

C) Whether to impose additional tax

If Plaintiff Kim DD confirmed the relevant statutes, it appears that it could have predicted the fact that the gift tax may be imposed by deeming other values than the reported value as the market price. Therefore, the grounds alleged by Plaintiff KimD alone cannot be deemed to have justifiable reasons for Plaintiff Kim DD. Therefore, this part of Plaintiff KimD’s assertion is without merit.

D)the calculation of a reasonable amount of tax;

As seen earlier, Defendant XX Head of the tax office’s imposition of gift tax on Plaintiff KimD is erroneous in calculating the tax amount by regarding the officially assessed individual land price of this case, not the retroactive appraised value of this court, as the market price of the real estate of this case. As such, when calculating the reasonable tax amount according to the retroactive appraised value of this court based on the time of donation of this case, the gift tax (including additional tax) on Plaintiff KimD is KRW 449,423,414 (see attached Table 3). Therefore, the portion exceeding the above reasonable tax amount among the above dispositions against Plaintiff KimD should be revoked as it

3. Conclusion

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