Seoul Administrative Court 2009Gudan16902 (2010.06)

Cho High Court Decision 2009Du2178 (No. 11, 2009)

The disposition imposing tax on the amount of the stamp contract at the time of acquisition is legitimate.

It is reasonable to view that the amount of debt was determined by the agreement to receive payment in lieu of the investment bond for apartment construction, and the amount of the debt was stipulated in the approval agreement as the actual transaction price at the time of acquisition.

2010Nu25598 Revocation of Disposition of Imposing capital gains tax

IsaA

○ Head of tax office

Seoul Administrative Court Decision 2009Gudan16902 decided July 6, 2010

December 9, 2010

December 23, 2010

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked, and the defendant revoked the disposition of imposition of capital gains tax of KRW 25,849,176 for the plaintiff on December 1, 2008.

1. Details of the disposition;

A. On January 10, 203, the Plaintiff acquired and owned ○○○○○○○○○-dong 794-26, 794-27 ground 5 floor apartment (hereinafter “instant apartment”) No. 401 (hereinafter “instant apartment”), and transferred it to GaB on October 30, 2007, to 150,000,000 won.

B. On December 10, 2007, the Plaintiff made a preliminary return on capital gains tax to the Defendant to the effect that the transfer of the instant house constitutes the subject of non-taxation for one household.

C. On December 1, 2008, the Defendant rendered the instant disposition to the Plaintiff on December 1, 2008, on the ground that the Plaintiff owned the Plaintiff’s ASEAN 28-21 △△△△-dong 28-21 △△△△-dong, and the transfer of the said house is not exempt from one house for one household, and the Plaintiff’s sales price is KRW 45,000,000 on the attached approval seal contract after the Plaintiff completed the registration of ownership transfer, and the acquisition price is reasonable to determine the amount of KRW 45,00,000 on the ground that the initial preliminary return of non-taxation was excluded, and the transfer price based on the actual transaction price is determined and notified as KRW 29,969,880, the transfer income tax for the year 2007 calculated with the acquisition price of KRW 45,00,000.

D. On January 13, 2009, the Plaintiff dissatisfied with the instant disposition, filed an objection with the Defendant on January 13, 2009, and the Defendant applied the unfair non-reported penalty tax rate on February 12, 2009 as a general penalty tax rate, thereby reducing the transfer income tax pursuant to the instant disposition to KRW 25,849,176.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 5 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On the following grounds, the Plaintiff asserts that the instant disposition was unlawful on the premise that it was an accord and satisfaction with its own investment funds, rather than on the following grounds. In other words, KimA, as the owner of the instant apartment site, agreed to transfer the ownership of 45,00,000 won, which corresponds to the standard market price of each of the above apartment sales contracts, if DoD newly constructed five-story apartment units on the said site between DoD and Do constructor. However, as DoD did not prepare construction cost, the Plaintiff, as Doar failed to invest the Plaintiff and DoE, made the instant apartment units after the completion of the construction of the construction cost on behalf of the Plaintiff and DoE, the LF, which is the wife of DoE, completed the ownership transfer registration for 501 out of the instant apartment units. However, the Plaintiff, Do governor, and KimA stated the acquisition value of each of the instant apartment units in accordance with the standard market price of 40,000,000 won, and thus, indicated the acquisition value and tax amount under the former Income Tax Act 104.

(b) Related statutes;

The entries in the attached Table shall be as follows.

C. Determination

(1) Criteria for calculation of acquisition value

According to Articles 94(1), 96(1), and 97(1)1(a) and (b) of the former Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007), the transfer value of assets shall be based on the "actual transaction price," which is the actual transaction price between the transferor and the transferee at the time of the transfer of the relevant assets, and where the acquisition value as necessary expenses deducted from the transfer value cannot be confirmed based on the actual transaction price required for the acquisition of assets, the transfer value shall be calculated based on the "actual transaction price, appraisal price, or conversion price as prescribed by the Presidential Decree. Such actual transaction price means not the market price reflecting the objective exchange value, but the actual transaction price per se. On the other hand, if the real estate is actually transferred for other benefits in lieu of the original obligation in accord and satisfaction, the original obligation amount shall be proved to be the actual transaction price of the relevant assets (see, e.g., Supreme Court Decisions 9Nu16818, Aug. 16, 1998>

(2) Determination on the instant case

First of all, as to whether the plaintiff acquired the housing of this case as payment in kind, Gap evidence 2, Eul evidence 1, Eul evidence 4, Eul evidence 6-1 through 3, and the purport of the whole pleadings as to the testimony of Eul witness of the first instance court, as to whether the plaintiff acquired the housing of this case as payment in kind for the construction price of the construction price of this case, Eul agreed to transfer the ownership of 4,5 stories out of the newly constructed apartment of 5 stories to the plaintiff as the owner of the apartment site of this case before 1998, and Eul's transfer of ownership of 10 stories out of the newly constructed apartment of 10 stories out of the construction price of this case to the plaintiff, Eul evidence 1, 190, 200, 1, 2, 3, 1, 1, 3, 1, 1, 2, 3, 1, 1, 2, 5, 1, 2, 3, 1, 1998.

Meanwhile, barring any special circumstance, it is presumed that the parties to the sale contract prepared an approval seal of the head of the Si/Gun to have been prepared in accordance with the sale contract between them, and that the contract was prepared differently from the actual ones (see Supreme Court Decision 93Nu2353, Apr. 9, 1993). As seen above, the plaintiff was to purchase the house of this case from Kim Jong on Dec. 8, 2002, and completed the registration of ownership transfer on Jan. 10, 2003, and prepared and submitted a certificate of approval seal of 00,000 won for the sale of the house of this case 40,000 won for the above 50,000,000 won for the above 50,000,000 won for the sale of the house of this case to the 50,000,000 won for the above 5,000,000 won for the 10,000 won for the above sale of the apartment house of this case.

(3) Sub-determination

Therefore, the Defendant’s disposition of this case calculated capital gains tax by deeming the actual transaction price at the time of the acquisition of the instant house as KRW 45,00,000 as the price stated in the seal of approval written contract submitted at the time of the registration of ownership transfer is lawful, and the Defendant’s assertion on different

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.