(영문) 인천지방법원 2015.6.16.선고 2014구단10360 판결

On October 17, 1996, the Plaintiff and ASEAN completed the registration of ownership transfer for each 1/2 portion of the building among the Yeongdeungpo-gu Seoul, Yeongdeungpo-gu, Seoul, 331M and its ground buildings (hereinafter referred to as the “instant real estate”).

(b) the transfer of equity and onerous donation;

1) On July 3, 2013, the Plaintiff completed the registration of ownership transfer with respect to 1/2 shares out of the instant real estate on the ground of donation to B.

2) At the time, the registration of the establishment of a right to collateral security or lease on a deposit basis was completed as listed below with respect to the instant real estate. On July 15, 2008, the Plaintiff and B leased part of the first floor of the instant real estate to D from July 31, 2008 to July 2013, 2013, and December 30. The Plaintiff was liable for loans of KRW 80 million to the Plaintiff’s New Bank (hereinafter “New Bank”) secured by the registration of the establishment of a right to collateral security (hereinafter “Korea New Bank”) as listed below, and for loans of KRW 30 million to the Plaintiff’s New Bank (hereinafter “New Bank”), KRW 270 million in total, KRW 400,000 in real estate (hereinafter “Korea New Bank”), KRW 500,000 in total, KRW 200,000 in real estate x KRW 2700,000 in real estate deposit and KRW 2500,000,00 in total,000.

A person shall be appointed.

3) Accordingly, between the Plaintiff and the new bank on September 30, 2013, the Plaintiff and B entered into an agreement to assume the obligation of KRW 800 million with respect to the Plaintiff’s new bank on the assumption of the obligation of KRW 800 million with respect to the Plaintiff’s new bank. On December 23, 2014, B returned KRW 250 million with respect to the deposit for lease on a deposit basis to the Korea Campt on December 23, 2014.

1) On July 15, 2013, the Plaintiff reported and paid KRW 94,500,000,000,000,000,000,000 total amount of debt that the Plaintiff agreed to accept from the instant onerous donation, and the acquisition value is KRW 485,63,351,00,00,000,000,000,000,000,000,000,000,000,000,000,000

2) On the other hand, B assessed the value of donated property to the Defendant on the same day as the standard market price at the time of donation in KRW 1,162,447,230, and reported and paid KRW 24,740,502 as gift tax, after deducting the amount of debt KRW 945,500,000.

(d) Application for rectification of capital gains tax;

1) On November 21, 2013, the Plaintiff filed a request for correction to the effect that the amount of capital gains tax calculated by applying KRW 660,353,906, which is the actual transaction value, should be reduced to KRW 53,963,293, which is the actual transaction value, was confirmed at the time of acquisition by the Defendant.

2) On December 5, 2013, the Defendant rendered a disposition rejecting the above request for correction (hereinafter “instant disposition”) on the ground that the sum of the Plaintiff’s obligations that B agreed to accept is not the actual transaction value, and that the acquisition value should also be calculated based on the standard market price as long as the Plaintiff calculated and reported the instant real estate as the standard market price.

3) The Plaintiff dissatisfied with the instant disposition and filed an appeal on March 4, 2014, but the Tax Tribunal dismissed the appeal on May 21, 2014.

[Ground of recognition] Facts without dispute, Gap 1 to 10, Eul 1 to 3 (including virtual numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) In light of the principle of substantial taxation under the Framework Act on National Taxes and Article 97(1)1 of the Income Tax Act (amended by Act No. 12030, Aug. 13, 2013; hereinafter the same) and Article 159(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 24697, Aug. 27, 2013; hereinafter the same), gains on transfer from onerous donation shall, in principle, be calculated on the basis of the price of murder transaction.

2) In this case, the Plaintiff acquired the instant real estate with ASEAN in KRW 1.580 million, which is the Plaintiff’s share value at the time of acquisition (i.e., KRW 1.580 million x 1/2) multiplied by the ratio of the amount of debts ( KRW 945,000 : KRW 1,162,447,230 : KRW 1,6222,701 : KRW 945,500,000) in the donation amount (i.e., KRW 1,62,447,230 : KRW 1,62,47,230). In the case of onerous donation, it is reasonable to view that the transfer value means that the donee takes over the amount of debts of the donor, and that the transfer value means KRW 94,500,000,000,000,00

3) Therefore, the instant disposition that did not regard the transfer value as the sum of the Plaintiff’s obligations, which did not evaluate the acquisition value as the actual transaction value, as the instant onerous donation, and was unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

The transfer price for calculating capital gains shall be based on the actual transaction price pursuant to Article 96(1) of the Income Tax Act. However, the actual transaction price, which is the basis for calculating capital gains, refers to the actual transaction price, not the market price that reflects the objective exchange value, but the actual transaction price itself or at the time of transaction. In the case of onerous donation for which a donee who received a donor’s obligation as a donation of an asset takes over the donor’s obligation, the amount of such obligation cannot be deemed as either the transaction price corresponding to the part to be deemed a transfer of the donor’s entire or donated assets (see Supreme Court Decision 2006Du7171, Apr. 26, 2007).

Therefore, in this case’s onerous donation, since the actual transaction value of the portion to be deemed a transfer cannot be deemed to be KRW 945 million in the amount of debt acquisition, the transaction example value, appraisal value, and conversion value, etc. should be determined by the method of a decision of estimation investigation under Article 114(7) of the Income Tax Act, since the transaction example value, appraisal value, and conversion value, etc. are not known, the transfer value of the portion to be deemed a transfer in this case’s onerous donation should be determined based on the standard market price, and as long as the transfer value is based on the standard market price, the acquisition value shall be determined by multiplying the standard market price at the time of acquisition by the ratio of the amount of debt from among the amount of debt.

Ultimately, the instant disposition, based on the premise that both the transfer value and acquisition value of the portion to be deemed a transfer should be calculated on the basis of the standard market price, is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

If so, the plaintiff's claim is without merit and it is so decided as per Disposition.