Busan District Court 2009Guhap3294 (2010.05.07)

Examination transfer 2009-002 (2009.04.10)

Actual transfer value of real estate

A contract confirmed by a tax authority is accompanied by a certificate of personal seal impression, and also includes matters related to the broker, on the contrary, the transfer contract presented by the plaintiff is not accompanied by a certificate of personal seal impression, and the broker is also void.

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

Park ○

Head of Seogsan Tax Office

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The transfer income tax devolving on October 1, 2008 rendered by the defendant against the plaintiff on October 1, 2007

The imposition of KRW 113,630,000 shall be revoked.

1. Circumstances of dispositions;

The reasons for this part of the judgment are the same as the corresponding part of the reasons for the judgment of the court of first instance. Thus, it is accepted by Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. The legality of the instant disposition

A. The plaintiff's assertion

The Plaintiff: (a) The transfer value of the instant real estate was KRW 40 million, and KRW 250 million, which the Defendant reported by the Defendant, was paid as remuneration by the Plaintiff at the request of Gangwon-do to manage the instant real estate and to leave the tenants; and (b) the instant disposition was unlawful on the premise that the transfer value of the instant real estate was KRW 650 million, although the Defendant did not have any relationship with the transfer value of the instant real estate, and (b) even if the transfer value of the instant real estate was KRW 650 million, the Plaintiff requested Gangwon-do to receive KRW 40 million upon delegation of the instant sales contract, and thus, the excess amount was paid as remuneration to the Plaintiff, and thus, the instant disposition that was made without deducting necessary expenses was unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Facts found in the instant case

(1) The Plaintiff, the Director of the Administration of the instant real estate, delegated all powers relating to the sale and purchase of the instant real estate to the Kang.

(2) On January 19, 2006, Gangwon-do, representing the Plaintiff, sold the instant real estate to YB, who is the representative director of △△D Co., Ltd., and prepared a sales contract for 650 million won, stating that the sales amount was KRW 650 million. After that, △△△D Co., Ltd. and △△△△D, which acquired the said △△D, received a total of KRW 650 million from 650 million.

(3)The sales contract of January 19, 2006 is accompanied by the Plaintiff’s certificate of personal seal impression. The broker column stated that “○○○○○○○ 76-3 205 o-dong, 76-3 205 o○○○○, △△ Licensed Real Estate Agents, and thisCC’s seal impression is affixed along with the statement that “the brokerage commission shall be 0.9 % (sale deposit).” On the other hand, the sales contract of May 9, 2006, stating the purchase price as KRW 400 million, was not accompanied by the Plaintiff’s certificate of personal seal impression, and the broker column also includes the broker column.

(4) On October 31, 2006, ○○○○ Company acquired the apartment housing business right of the instant real estate members from △△son Co., Ltd.

(5) Before the Plaintiff sold the instant real estate, there was a question that the redevelopment project for one of the instant real estate sources was promoted.

[Reasons for Recognition] Evidence Nos. 1, 3, 4, 5, 8, 11, 12, and 13; the testimony of a witness of the first instance trial and the purport of the whole pleadings

D. Determination

(1) Whether the transfer value is high

In light of the following circumstances, it is reasonable to view that the sales price of the instant real estate was KRW 650 million, in light of the aforementioned facts known by the fact of recognition.

In other words, the plaintiff's certificate of personal seal impression is attached to the sales contract of January 19, 2006, and the matters related to the broker are also stated, while the Gangseo, which is the plaintiff's agent, received the total of KRW 650 million as the sales price of this case, while the plaintiff's certificate of personal seal impression was not attached to the sales contract of May 9, 2006, and the broker's name is also not attached. Thus, it is more natural to explain that the sales contract of January 19, 2006 is the true contract.

② △△D acquired the right of collective housing business of the instant real estate members from △△son Co., Ltd. only after October 31, 2006. As such, the sales contract of △△D on May 19, 2006 appears to have retroactively prepared the date after △△D acquired the said right of collective housing business. Such retroactive preparation is also recognized based on the official document (No. 4) submitted by △△D to the Defendant on September 10, 2008.

③ Since the Plaintiff appears to have increased the price of the instant real estate since the Plaintiff had been implementing a redevelopment project for KRW 378 million prior to the sale of the instant real estate, deeming that the instant real estate purchased KRW 378 million was sold at KRW 650 million rather than KRW 400 million accords with the transaction formula.

④ The Plaintiff’s assertion that Gindo paid KRW 250 million as compensation for the so-called reputation 250 million in the course of requesting the Gangwon-do to manage the instant real estate and leave the tenants, etc. is difficult to believe in light of the following circumstances acknowledged by the evidence as seen earlier.

In other words, since the title of the instant real estate is also the seller, there is no reason for the buyer to pay the price to the Gangseo.

(C) The witness Gangnam-gu in the first instance court stated that the amount paid as the name of the lessee of the instant real estate in the court of first instance was calculated at KRW 400 million as the Plaintiff’s share, and that the amount was not calculated at KRW 250 million as the Plaintiff’s share, and that the amount was not calculated at KRW 250,000,000. This contradicts the Plaintiff’s assertion that the Gangwon-do witness Park was paid by △D.

(ii)whether it constitutes necessary expenses of KRW 250 million or not;

In light of the following circumstances, the Plaintiff cannot be deemed to have paid 250 million won to Gangwon-A as remuneration upon delegation of the disposal of the instant real estate in light of the following circumstances, which are acknowledged as comprehensively taking account of each testimony of the witness BB, the Gangwon-A (part) and the witness D in the trial of the first instance. In light of the aforementioned circumstances, the Plaintiff cannot be deemed to have paid 250 million won to Gangwon-A as remuneration upon delegation of the disposal of the instant real estate. Thus, the said KRW 250 million is not deemed necessary expenses

In other words, the plaintiff has experience in purchasing and leasing the real estate in addition to the case, and the real estate in this case was also purchased at around September 2005 and operated the leasing business. Even though it was written in the lawsuit that redevelopment project is implemented, it is not easy to agree to entrust the disposal of the real estate in this case to the Gangwon-A, which is a mere manager of the real estate in this case, with the disposal of the real estate in this case, and to pay the remainder with the remuneration of the Gangwon-A.

(2) If there was a fee agreement as above, it is doubtful whether it is necessary to prepare a separate contract with the purchase price of KRW 400 million in addition to the contract with the purchase price of KRW 650 million in relation to the sale and purchase of the instant real estate.

③ In light of the fact that the amount received as remuneration falls under 38.46% of the purchase price, and this is excessive in light of the level of payment of brokerage commission at the time, it is difficult to find reasonable grounds for the payment of such high amount as remuneration to the Gangwon, which is a mere director of the office of management of the instant real estate, and the Plaintiff also stated that the Gangwon embezzled 250 million won out of the purchase price of the instant real estate at ○○ Tax Office on August 8, 2008, and that the Plaintiff embezzled 250 million won out of the purchase price of the instant real estate, it is difficult to readily understand that the Plaintiff paid the Gangwon 250 million won to it.

(4) On the other hand, with respect to the character of KRW 250 million, the Plaintiff’s assertion is difficult to believe even in light of the following: (a) it is not consistent with the Plaintiff’s assertion: (b) it is not consistent in light of the fact that the Plaintiff requested the Gangwon-do to manage the instant real estate and to leave the tenants; and (c) it is alleged that the Plaintiff paid KRW 250 million as compensation

⑤ According to the statement of the witness D's testimony at the trial of the party, the plaintiff delegated the authority to the Gangwon-gu to sell more than 400 million won in relation to the disposal of the real estate in this case, and did not participate in the conclusion of the sales contract and the receipt of the sales price. While the Gangwon-do sold the real estate in this case for KRW 650 million, it was known that he had sold the real estate in this case for KRW 400 million, and he would have known that he would own the remaining amount of KRW 250 million, and he would be able to pay the balance of KRW 250 million. However, he would have agreed that the plaintiff would return the real estate in this case to himself. In accordance with the provision to the effect that "one-half of the above would have changed to one-half of them." The plaintiff agreed that if taxes related to the sale of the real estate in this case were imposed on him instead of filing a criminal complaint, the plaintiff would have agreed that the remaining amount of remuneration would not be paid to him.

In addition, as seen earlier, the actual sale price of the instant real estate is KRW 650 million, as recognized by the Plaintiff, and as long as the Plaintiff entrusted the sale of the instant real estate to Gangnam and received KRW 650 million from the price for the sale of the instant real estate by Gangseo, the Plaintiff’s embezzlement of KRW 250 million, excluding the amount of KRW 400 million paid to the Plaintiff, even though Gangseo embezzled the remainder of KRW 250 million with the exception of the amount of KRW 400 million paid to the Plaintiff, the Plaintiff may make a settlement reduction, such as seeking the return of the said money, and the actual sale price actually belonged to the Plaintiff. Therefore, the transfer price, which serves as the basis for calculating the transfer income tax of this case, is still KRW 40 million, not KRW 650 million, but KRW 650 million.

E. Sub-decision

Therefore, the instant disposition based on the premise that transfer margin 250 million won was underreporting is lawful.

3.In conclusion

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