Cho High Court Decision 2010Du3295 ( October 23, 2011)

land and buildings are transferred en bloc.

The plaintiff is recognized to have transferred en bloc the telecom and the land of this case, including house fixtures and fixtures, and the disposition imposing capital gains tax by calculating the total transfer price pursuant to Article 100 (2) of the Income Tax Act is legitimate.

2011Gudan8195 Revocation of Disposition of Imposition, including transfer tax,

Park AA

○ Head of tax office

July 6, 201

August 10, 201

1. The plaintiff's claim is dismissed.

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

The imposition of capital gains tax of KRW 645,427,640 on the Plaintiff on June 17, 2010 shall be revoked.

1. Details of the disposition;

A. On November 15, 2003, the Plaintiff and its wife (hereinafter referred to as the “Plaintiff, etc.”) acquired 9.8 billion won in total, a half of the price of the land and its ground buildings 000 ○○○○○-dong 000 and its wife (hereinafter referred to as the “instant telecom”). The Plaintiff acquired 000 won in total as of the same day (hereinafter referred to as the “instant land”) and 4.6 billion won in price.

B. On July 10, 2008, the Plaintiff et al. used the instant land as a parking lot for the instant telecom, transferred the instant telecom and land to BB.

C. On July 23, 2008, when the Plaintiff, etc. reported and paid the transfer income tax on the transfer of each of the above real property, the Plaintiff, etc. reported and paid 11 billion won (excluding the transfer value of the house and equipment 300 million won) in the transfer value of the instant Moel, and 334,289,160 won (Plaintiff 172,894,70 won, 161,394,390 won, and 161,394,390 won) in the transfer value of the instant land.

D. As to this, the Defendant calculated the transfer price of KRW 16 billion by arbitrarily dividing the transfer price by asset even after the Plaintiff et al. transferred the instant franchise and land to BB in a lump sum. The house, etc. calculated the transfer price of KRW 16 billion in accordance with Article 100(2) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same) on June 17, 2010, on the ground that the transfer price of KRW 16 billion was calculated by calculating the transfer price of KRW 645,427,640 in addition to the Plaintiff’s transfer income tax for the year 2008.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 8, 11 to 14 (including paper numbers; hereinafter the same shall apply) and Eul evidence 1 to 3 and 5

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The Plaintiff, etc. did not constitute “where the distinction between the value of land, building, etc. is unclear” under Article 100(2) of the former Income Tax Act because the transfer value was separately determined and transferred as KRW 11 billion and KRW 4.7 billion when transferring the instant cartel and land. Therefore, the instant disposition otherwise reported is unlawful.

(2) Where the value of the house and fixtures is indicated separately from the sale price of the real estate on the real estate sales contract, the National Tax Tribunal’s decision that the house and fixtures should be excluded from the transfer price. In this case, the Plaintiff expressed 300 million won of the house and fixtures on the real estate sales contract from the time of the transfer of the apartment in this case, and thus, the instant disposition that included 300 million won of the house and fixtures in the transfer price is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The key issue of the instant case is whether the Plaintiff, etc. transferred the instant cartel and land to KRW 4.7 billion, as alleged by the Plaintiff, the transfer value of the instant cartel and KRW 1.1 billion, the transfer value of the instant cartel and KRW 300 million, or whether the transfer value of the instant cartel and land, including house and equipment, was transferred to KRW 16.0 billion, as alleged by the Defendant, or whether the instant cartel and land including house and equipment, including house and equipment, were transferred to KRW 16.0 billion, and this is examined.

In light of the following circumstances, where the purport of Gap evidence No. 4 and the entire purport of oral argument is recognized, the plaintiff is acknowledged to have transferred the price of transfer at 16 billion won by adding up the instant telecom and land, including house equipment and fixtures. Each of the items of each real estate sales contract (Evidence No. 5 and 6), each fact confirmation certificate (Evidence No. 9 and 10 of A), and a certificate (Evidence No. 15 of A) that conform to the above facts alleged by the plaintiff, are not reliable, and thus, it is difficult to believe that the plaintiff is not reliable, or to recognize the facts alleged by the plaintiff.

First, considering that the land of this case is being used as a parking lot for the Moel, it would normally be evaluated and traded together with the land of this case, and there is no basis for price calculation that the parties calculated the price as asserted by the plaintiff.

Second, with respect to the investigation of the transfer income tax, BB, which is the transferee of the franchise and land of this case, made the following statements.

- The Plaintiff first demanded 18 billion won in the aggregate of the instant land and the Maurel, but the B suggested 15 billion won in the 15 billion won. Ultimately, 16 billion won in the 2009.

- The price is calculated by dividing the price at the request of the plaintiff into two parcels among the remaining parts, and the price is calculated by lots only on the confirmation of the contract prepared by the plaintiff.

- The first contract entered into a contract on the condition that the equipment should not be separately calculated, and the telecom and the parking lot should be transferred to 16 billion won, and later, the contract was made in a situation where the Plaintiff is well aware of the first purchaser of the telecom by providing separate equipment at the time of transfer to the telecom business.

Third, even when the Plaintiff acquired the instant cartel, the sales price was determined without separately calculating the price of the house and the equipment.

Fourth, if the value of the house and equipment should be excluded from the transfer value, it should be excluded from the acquisition value. (There is no assertion or proof as to the fact that the plaintiff newly purchased the house and equipment after the acquisition of the apartment, and the house and equipment transferred by the plaintiff seems to have been acquired at the time of the plaintiff's acquisition of the apartment, and considering the characteristics of the house and equipment whose remaining value is reduced as the use period expires, the acquisition value of the house and equipment will be larger than the transfer value after the lapse of five years, so the transfer value of the apartment in this case would eventually increase more.

(2) Therefore, the instant disposition that deemed that the Plaintiff et al. transferred the instant telecom and land in a lump sum to KRW 16 billion is lawful, and the Plaintiff’s aforementioned arguments are without merit.

3. Conclusion

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