Cho Jae-hoon 2014Gu2565 (O6.30)

Whether a person has reported capital gains tax by preparing a charter contract;

In light of the acquisition value of a purchaser of a right to sell lots, the testimony of a real estate broker, and the details of a revised report by a seller, the contract submitted by the plaintiff is confirmed as a multi-party contract, which is legitimate

Article 96 of the Income Tax Act

2014Guhap1989 Revocation of Disposition of Imposing capital gains tax

AA

O Head of tax office

April 10, 2015

May 6, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The imposition of capital gains tax of KRW 23,665,010 on the Plaintiff on November 8, 2013 shall be revoked.

1. Details of the disposition;

A. On July 27, 2004, the Plaintiff acquired the right to sell the instant apartment units (hereinafter referred to as the “right to sell the apartment units”) of OO-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong O-dong (hereinafter referred to as “O-dong apartment units”) and transferred the right to sell the instant apartment units to KimB on August 2, 2005.

B. On September 27, 2005, the Plaintiff reported and paid KRW 1,512,000,000 as transfer income tax for the year 2005, by applying the acquisition value of the instant sales right plus KRW 7 million as to the transfer of the instant sales right to the Defendant.

C. On May 9, 2013, the Defendant notified the Plaintiff and KimB of the fact-finding data on the transfer value and acquisition value of the instant sales right, which was confirmed in the process of reporting the transfer income tax of the ParkCC, which was acquired from KimB from the head of the OB, and recognized that the Plaintiff transferred the instant sales right to KimB in KRW 38 million, and on November 8, 2013, the Defendant corrected and notified the Plaintiff of the transfer income tax of KRW 23,665,010 (including additional tax) for the transfer income tax of KRW 23,665,010 (hereinafter referred to as the “instant disposition”).

D. The Plaintiff appealed and filed an objection on December 26, 2013, but was dismissed. On April 30, 2014, the Plaintiff filed an appeal but dismissed.

Documents Nos. 1, 4, Eul Nos. 1, 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On May 11, 2005, the Plaintiff entered into a contract with EE to sell the instant sales right of KRW 38 million for the premium of KRW 38 million, and received the down payment of KRW 38 million (one million out of the real estate as a brokerage commission to DaD) through DaD as an individual among real estate. Under the above contract, EE pays KRW 21890,000,000,000 to the Plaintiff by July 29, 2005, which was agreed to be the date of the change of ownership, but it did not perform the said contract, and the Plaintiff cancelled the above sales contract. The Plaintiff transferred the instant sales right to KimB on August 2, 2005, to KimB again transferred the instant sales right of KRW 7 million for the premium of KRW 1,200,000,000,000 for the premium of KRW 38 million.

The sales contract (A evidence 2, 200,000 won + KRW 21890,000 in the apartment sale price of this case + KRW 38,000 in the premium + KRW 38,000 in the premium) and the sales contract (hereinafter referred to as "the first contract") entered into with the buyer E-D) is related to the sales contract of May 11, 2005 already rescinded. The sales contract (the apartment sale price of this case + KRW 22,590,00 in the apartment sale price of this case + KRW 21,890 in the premium of this case + KRW 7,000 in the premium of this case) is in conformity with the fact that the sales contract (the evidence 1, 200,000 in the apartment sale price of this case) entered into with the sales contract of this case as the sales price of this case is unlawful in calculating the transfer price in accordance with the first contract.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

The following facts are acknowledged in full view of each of the above evidence, Gap evidence 2, 3, Eul evidence Nos. 2, 4, and 7 and the purport of the whole pleadings.

1) The details of changes in ownership of the instant sales right are as follows.

2) On September 15, 201, ParkCC transferred the instant apartment and reported the transfer income tax, and included KRW 50 million in the acquisition value of the instant apartment, including the premium of KRW 50 million. The director of the tax office notified by the director of the tax office of the tax office of the contents thereof, confirmed that the transfer value (the premium of KRW 12 million) reported by KimB on the instant right to parcel out and the acquisition value reported by ParkCC (the premium of KRW 50 million) was different, and demanded KimB to explain the transfer value of the instant right to parcel out.

3) On May 3, 2013, KimB: (a) on May 1, 2005, he paid the Plaintiff a premium of KRW 38 million to the sales price already paid by the Plaintiff; (b) on May 11, 2005, KimB acquired the instant sales right; (c) he prepared a sales contract and reported the transfer income tax to pay KRW 7 million for the purpose of reducing the transfer income tax by agreement with the Plaintiff; (d) subsequently, he received KRW 50 million from ParkCC and transferred the instant sales right, but he reported the transfer income tax to transfer the instant sales right by receiving KRW 12 million for the purpose of reducing the transfer income tax; and (e) prepared a written confirmation of actual transaction that “The Plaintiff received KRW 12 million for the purpose of reducing the transfer income tax and reported the transfer of the instant sales right to transfer the instant sales right.” (c) as an actual sales contract, he submitted a written confirmation of actual sales contract and the Plaintiff’s cash storage certificate in the Plaintiff’s name to confirm the payment of KRW 38 million.

4) As to the purchase price of the instant apartment, the first contract states that the purchase price of the instant apartment is KRW 218.9 million, the sale price of the instant apartment, KRW 25.69 million, the purchase price of the instant apartment that the Plaintiff paid in cash, KRW 25.69 million, and KRW 38,000,000,000 for the purchase price of the instant apartment, and the special agreement stipulates that the change of the ownership on July 29, 2005 shall be made on July 29, 2005, and the transferor shall cooperate without all the documents necessary for the change of the name. 2. Other expenses (38,00,000) are not raised even if they are changed without mutual agreement, and the transferor shall unilaterally waive the down payment. 3.0,000,000 won of the purchase price of the instant apartment, and the purchaser shall succeed to the remainder of the purchase price of the instant apartment, 2.5,000,000 won of the purchase price.

5) As to the transfer and acquisition of the instant sales right, the Plaintiff received KRW 37 million from DaD on May 11, 2005, and KRW 20,910,000 from YF on August 2, 2005.

D. Determination

Comprehensively taking account of the following circumstances that can be recognized as a witness’s testimony comprehensively, the Plaintiff transferred the instant sales right of KRW 38 million, but it is sufficiently recognized that the Plaintiff prepared a written contract and reported transfer income tax as if it transferred the premium of KRW 7 million to reduce the burden of transfer income tax. This constitutes a case where a taxpayer evades tax due to an unlawful act with intent to evade tax, and thus, the exclusion period of imposition is ten years pursuant to the main sentence of Article 26-2(1)1 of the former Framework Act on National Taxes (amended by Act No. 12848, Dec. 23, 2014). The Defendant’s disposition that calculated transfer income tax according to the actual transfer value of the instant sales right within 10 years from the date of transfer of the instant sales right is lawful.

1) ChoD is a real estate intermediary and KimB’s incidental to this Court. At the time of 2005, the witness was operating the real estate brokerage office with YF as of the time of 2005, and E was the YF’s wurf. The witness and YF decided to purchase the instant sales right from the Plaintiff with the funds of KimB and EE. The witness and YF agreed to purchase the instant sales right on behalf of the Plaintiff. The witness prepared the first contract on behalf of E, and the sales price of the instant sales right stated in the first contract is the actual sales price. The second contract is different from the fact that the instant sales right was prepared in order to reduce the Plaintiff’s burden of capital gains tax. The second contract is different from the fact that the document related to the change of the name was not issued. The change of the ownership of the instant sales right was made to E and the Plaintiff with the consent of E and the Plaintiff, and the change of the ownership was made by paying the full purchase price at the time of E.

2) On May 11, 2005, the testimony of DaD transferred KRW 37 million to the Plaintiff on May 11, 2005, and KimBB and DaD possess a cash custody certificate in the Plaintiff’s name on May 11, 2005, and the yellowF, which does not have any relation with DaD paid KRW 20910,00 to the Plaintiff on August 2, 2005, is written in detail in the first contract. On the other hand, the second contract is written in the form of the purchase price of the instant right, and the second contract is written in the form of the down payment and the remainder payment, and is not written in the content of the purchase price of the instant apartment, and thus, it is reliable.

3) On the other hand, the Plaintiff asserts that this case’s sales right was transferred to EE at the initial stage of KRW 38 million, but EE did not pay the remainder of KRW 23 million until July 29, 2005 (=21890,000 won for the sale of options + the down payment of KRW 1.28 million for the option contract), and again, on August 2, 2005, the Plaintiff did not transfer the sales right of this case’s sales right at KRW 7 million to KimB. However, the Plaintiff’s assertion that this case’s sales right was inconsistent with the Plaintiff’s sales right of KRW 200,000,000 for the purpose of purchasing the sales right of this case’s sales right of KRW 700,000,000,000,000,0000,000 won for the benefit of KRW 700,000,000,000,000,000.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.