Seoul Administrative Court 2009Gudan10874 ( October 25, 2010)

Review Transfer 2009-0066 (Law No. 21, 2009)

In the event that the transfer of apartment falls under the low-price transfer between the related parties, the wrongful calculation panel is applied.

In light of the fact that the transfer value of comparative apartment is merely about 75% and it seems to be too low, the transfer of apartment can not be viewed as a normal transaction that the economic person would take in light of social norms and customs, and thus, it is recognized that the tax burden has been unjustly reduced.

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

Ma-○

Head of Mapo Tax Office

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked, and the imposition of capital gains tax of KRW 16,393,020 against the plaintiff on January 2, 2009 by the defendant shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s reasoning is as follows, except for the addition of the following judgments as to the Plaintiff’s assertion, and thus, the reasoning for this Court’s reasoning is identical to the part concerning the judgment of the first instance court. Thus, it is acceptable to accept this as it is in accordance with Article 8(2)

2. Additional matters to be determined;

A. The plaintiff asserts that, on the ground that the plaintiff sold the apartment complex of this case at low price below the market price, 102,50,000 won calculated by deducting the actual payment of KRW 150,00,000 from the market price of KRW 252,50,00,00,000, from the actual payment of KRW 150,000 shall be deemed to have been donated to the above two persons, and that the above disposition of this case was made to the plaintiff even after the payment of KRW 1,394,940 was made on June 24, 2008, the above disposition of this case was in violation of the principle of substantial taxation, and thus, it is unlawful since gift tax and capital gains tax differ from the requirements for establishing tax liability and taxpayers, each disposition of taxation shall be judged independently in accordance with the substance of each taxation requirement, and the plaintiff's assertion that the taxation disposition of this case should be excluded from the overlapping application of both cases, as long as there is no special provision as possible (see Supreme Court Decision 98Du1999,198, respectively).

B. In addition, the plaintiff asserts that Article 101 of the Income Tax Act cannot be applied to the transfer of one-half of the share of the apartment of this case, because the above leapA is not a person in a special relationship with the plaintiff as the plaintiff's deceptive act. Thus, Article 98 (1) 1 of the Enforcement Decree of the Income Tax Act only provides that "a person in a special relationship with the plaintiff under Article 101 of the Income Tax Act is a relative of the resident concerned" and does not limit the scope, the Framework Act on National Taxes shall apply mutatis mutandis to this case. The plaintiff and the above leapA corresponds to Article 20 (4) of the Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 18849 of May 31, 2005) as it constitutes a person with a special relationship under Article 101 of the Income Tax Act, so the plaintiff's above assertion also is without merit.

3. Conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.