early 2011 Mine073 (201.05.04)

Disposition excluding the amount paid by a real estate consulting company from the acquisition value is legitimate.

In addition to the price paid to the seller, the acquisition value cannot be recognized in light of the assertion that the price paid additionally by the real estate consulting business entity should be included in the acquisition value, or the fact that there is no evidence to confirm the monetary relationship between the seller and the consulting business entity, which can be deemed that the payment has been remitted to the consulting business in lieu

2011Guhap2705 Revocation of Disposition of Imposing capital gains tax

XX Kim

Head of the North Mine District Tax Office

November 8, 2012

December 13, 2012

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 000 for the year 2008 against the Plaintiff on August 16, 2010 is revoked.

1. Details of the disposition;

A. On November 14, 2007, the Plaintiff acquired the ownership by purchasing from NewA (hereinafter referred to as the “instant land”) 614m2 (hereinafter referred to as the “instant land”) east-do 000-00, and sold the said land to KimG on September 2, 2008.

B. On May 31, 2009, the Plaintiff filed a final return on the tax base of capital gains tax with the transfer value of KRW 000 (=the purchase price of the instant land + incidental expenses + KRW 000), the transfer value of KRW 000, and the transfer income amount of KRW 000.

". However, on August 16, 2010, the Defendant confirmed the fact that the former owner of the instant land reported the transfer value at KRW 000,000, and determined the transfer value by considering the acquisition value of the said land as KRW 000, and added additional tax, and subsequently, notified the Plaintiff of the amount of tax already paid to the Plaintiff on August 16, 2010 (hereinafter “instant disposition”). The Plaintiff filed an appeal with the Tax Tribunal on February 15, 201, upon objection, on February 15, 201, the Tax Tribunal dismissed the Plaintiff’s claim on May 4, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 7, Eul evidence 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff purchased the instant land in total of KRW 000 by paying KRW 000 to New A andO with the purchase price, and thus, the instant disposition that deemed the acquisition price of the instant land as KRW 000 is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) When the Plaintiff purchased the instant land from the newA, on November 13, 2007, the Plaintiff paid 000 won as down payment to the newA on November 13, 2007, 000 won as down payment, 000 won as of November 14, 2007, and 000 won to the O, a real estate holding company.

2) Afterward, NewA reported the transfer value of the instant land to the head of a female tax office at KRW 000,000, accompanied by a sales contract (No. 2-2) in which the purchase price was made.

3) On September 2, 2008, the Plaintiff transferred the instant land to KimG in the purchase price of KRW 000.

[Reasons for Recognition] Unsatisfy, Gap evidence 3, 4, 5, Eul evidence 2

2. Purport of the whole pleadings;

D. Determination

1) As a matter of principle, the tax authority bears the burden of proof of the legality of taxation, including the tax base of capital gains tax, on the grounds that the tax authority bears the burden of proof, in principle, necessary expenses that are the basis of the determination of taxable income. However, deduction of necessary expenses is more favorable to the taxpayer, and most of the facts constituting the basis of necessary expenses are located in the controlled area of the taxpayer and thus, the tax authority is difficult to prove. Thus, if it is reasonable to have the taxpayer prove the existence of necessary expenses in consideration of difficulty in proof or equity between the parties, it is reasonable to view that the taxpayer has the burden of proof (see, e.g., Supreme Court Decisions 91Nu10909, Jul. 28, 1992; 201Du3210, May 13, 2011).

2) Therefore, considering that the Plaintiff’s 00 won paid to O on November 14, 2007 is included in the acquisition value of the instant land, the Plaintiff’s remaining 00 won of the acquisition value of the instant land may not be deemed as 00 won because the Plaintiff’s remaining 00 won of the purchase value of the instant land may not be deemed as 00 won of the purchase price, and the Plaintiff’s remaining 000 won of the purchase price of the instant land may not be deemed as 000 won of the remainder of the purchase price of the instant land, and the Plaintiff’s remaining 00 won of the purchase price of the instant land may not be deemed as 00 won of the remainder of the purchase price of the Plaintiff’s 200 won of the remainder of the purchase price of the instant land, and the Plaintiff’s remaining 00 won of the purchase price of the instant land may not be deemed as 00,000 won of the remainder of the purchase price of the Plaintiff’s new 20,000 won of the purchase price of the instant land.

3. Conclusion

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