Cho High Court Decision 2008J306 ( November 10, 2008)

The legitimacy of the assertion that the partial amount was returned from the transfer value of the right of sale

In light of the fact that a relatively detailed written confirmation of the reduction of the transfer price with the Plaintiff is not mentioned in the said written confirmation, the said evidence cannot be believed as it is and there is no other evidence to acknowledge it otherwise.

The contents of the decision shall be the same as attached.

Article 111 (Final Return of Income Tax Act)

Article 114 (Notification of Transfer Income Tax Base and Tax Amount under Decision or Rectification)

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 24,920,290 against the Plaintiff on July 1, 2008 exceeds KRW 15,108,051, shall be revoked.

1. Circumstances of the disposition;

A. On December 28, 2001, the Plaintiff acquired the right to sell in lots under 213, 00, 00, 000, 00, 00 ○○○○-dong, 707-4, 07-4, 000, from the ○○○-si, 000, and transferred the right to sell in lots to the ○○-si, 000,000 won on August 1, 2002, but did not report the transfer income tax.

B. On July 1, 2008, the Defendant notified the Plaintiff of the 375,102,00 won of the transfer value of the purchase right of this case and the acquisition value of the 330,000,000 won, and decided and notified the Plaintiff of the 24,920,290 won of the transfer income tax belonging to the year 2002 (including the additional tax of 11,403,369 won) (hereinafter referred to as “the imposition disposition of this case”).

C. On September 22, 2008, the Plaintiff filed an appeal with the Tax Tribunal on September 22, 2008 on the grounds of objection to the imposition disposition of the instant case, but was dismissed on November 10, 2008.

[Ground of recognition] Evidence Nos. 1, 4, 1, 4, 5-type 1, 2, 2-type 2, and the purport of the entire argument

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff received a statement from the transferee of the instant parcelling-out right in order to pay the price of the instant parcelling-out right in excess of the price of the instant parcelling-out right, and agreed to return the price of KRW 10 million. Accordingly, since the Plaintiff returned the price of KRW 5 million on January 3, 2007, the transfer value of the instant parcelling-out right should be deducted from the transfer value of the instant parcelling-out right. Although the Defendant was notified of the taxation data around April 2005 by the Jung-gu regional tax office, it is unreasonable to impose penalty tax without immediately imposing the tax amount.

(b) Related statutes;

Article 111 (Final Return of Income Tax Act)

Article 114 (Notification of Transfer Income Tax Base and Tax Amount under Decision or Rectification)

C. Determination

The plaintiff's transfer of 5 million won to Song-si, Seoul Special Metropolitan City on January 3, 2007 constitutes the amount of the transfer proceeds of the sale proceeds of this case, and there is a marriage statement (No. 7, No. 8-1, No. 2) in Song-gu, Seoul Special Metropolitan City on the basis of evidence corresponding thereto. However, returning the reduction of the transfer proceeds after the lapse of 4 years from August 1, 2002, which is the transfer date of the sale right of this case, is very exceptional. The plaintiff and Song-si, Seoul Special Metropolitan City * Dong-si * * Dong Dong * * * * 5,00, Jan. 31, 2005, the plaintiff's confirmation document (No. 5-2), which was prepared in the course of the tax investigation of Song-gu, Seoul Special Metropolitan City on January 31, 2005, the plaintiff's transfer proceeds cannot be viewed to be a relatively different statement in the certificate of evidence and statement from the above transfer proceeds.

In addition, the non-payment of the additional tax is imposed at a certain rate of the tax amount paid in kind for the period from the day following the day when the taxpayer was paid the tax amount to the day of the tax payment notice. As such, there is no additional tax for the above period, and the payer who paid the additional tax within the period of the tax payment notice can obtain the benefit of the amount equivalent to the interest accrued during the above period. Therefore, there is a need to deprive him of such benefit by taking account of the equity with the payer within the payment period, and if the taxpayer paid it at the latest, if he paid it at the latest, the additional tax for the non-payment was not imposed. Thus, it cannot be deemed unlawful on the ground that the Defendant notified the taxpayer of the taxation data from the regional tax office after being notified of the taxation data

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.