Daejeon District Court 2006Guhap5887 (Law No. 16, 2007)

Whether the apartment sale price can be viewed as the transfer price of land when exchanging land with apartment;

If the price is assessed on the basis of the apartment sale price in exchange for an apartment owned by another person after purchasing the land and completing the registration, it is reasonable to view that the transfer price of the land is the apartment sale price.

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

Article 24 (Calculation of Gross Amount of Income)

1. The plaintiff's appeal is dismissed.

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

The decision of the first instance court is revoked. The defendant's decision was revoked on November 10, 2005; ① the imposition of KRW 18,506,520 for the plaintiff on November 10, 200; ② the imposition of KRW 6,114,90 for the global income tax for the year 200; ③ the imposition of KRW 1,563,660 for the global income tax for the year 200; ④ the imposition of KRW 185,407,00 for the global income tax for the year 200; ④ the imposition of KRW 140,407,00 for the global income tax for the year 203; ⑤ the imposition of KRW 374,241,70 for the global income tax for the year 204; ⑤ the imposition of KRW 324,421,70 for the global income tax for the year 203 is revoked (the plaintiff was subject to the correction disposition by the defendant; and reduce the purport of the claim of the claim regarding global income tax for the

1. Details of the disposition;

A. From July 1, 2002, the Plaintiff has registered its business with the trade name called '○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and

B. In 200, the Plaintiff transferred 38 lots of land in the name of ○○○○○○○○○○○○○○○○, including the transfer of 4 lots of land, such as ○○○○○○○○○, ○○○○, ○○○○, by 2004. Of them, the Plaintiff did not file a global income tax return on the portion of transfer in 200 and 2001. As regards the portion of transfer in 202 and 203, the global income tax amount was reported as 0 won, and as regards the portion of transfer in 204, the global income tax amount was reported as 327,000 won.

C. Around August 2005, the Defendant conducted a tax investigation on the Plaintiff, and then deemed the Plaintiff’s income from the transfer of real estate in the name of the wife ○ as the business income of the Plaintiff, who is the actual transaction, and at the same time deemed the said transfer income in the year 2000 and the transfer income in the year 2001 as the real transaction income in the year 18,506,000, 6,115,000, 202, 1,564,000,000, 200,290,290,290, 2000,290,150, 2004,24,242,000, and imposed on the Plaintiff on November 10, 2005.

D. On December 29, 2005, the Defendant: (a) added the acquisition cost to the necessary expenses on the ground that the global income tax for the year 2003, which was in the instant lawsuit, was reduced to KRW 30,434,400; and (b) adjusted the total amount of global income tax for the year 2003, which was paid by the Plaintiff, to KRW 185,407,00 (hereinafter “the remainder of each taxation disposition” excluding the amount revoked by the above revision from 2000 to 2004). [The grounds for recognition] The Defendant did not dispute; (c) written evidence No. 1; (d) evidence No. 2; and (d) evidence No. 1 (including each number); and (d) the purport of the whole pleadings and arguments.

2. Whether each taxation of the instant case is legitimate

A. As to the imposition of global income tax for the year 2000

(1) The plaintiff's assertion

Of the land that the Plaintiff transferred in 2000, the Plaintiff purchased 1/2 shares in the name of each of its own wife around 1997 from 4,463 cubic meters of forest land ○○○○○○○○○○○○○○, ○○○○, ○○○○○○○, ○○○○○○, from among the land that the Plaintiff transferred in 2000, respectively. The Plaintiff sold 30 million shares to ○○○○, and this ○○, around October 200, exchanged all of the above land with 2 bonds owned by ○○○, ○○. Accordingly, the Plaintiff’s share transfer value was confirmed to be KRW 35,00,000,000, the Plaintiff’s share transfer value was calculated as KRW 750,000 (i.e., 15,000,000) and calculated as of the time of the exchange agreement between the Plaintiff and ○○, not the above sale price.

(2) Determination

In full view of the purport of the whole pleadings on the evidence Nos. 1, 2, 8, and 9 No. 1, 2, 8, and 100 No. 101 and 201, the Plaintiff and ○○○○ purchased 1/2 of the above land’s share in its own wife’s name on or around December 1997 and completed a joint registration on or around October 2000 between ○○○○ and ○○○, a wife’s wife, around October 200, and the above land and ○○○○○○○○○○○○, ○○○○○, ○○○○, ○○○, ○○○, ○○, ○○, ○○, ○○, 101 and 201, and ○○○, 100,000 won whose original sale price was 8,50,000 won, and thus, the Plaintiff’s assertion that the above shares were transferred is reasonable.

B.With respect to the allegation of distribution of profits in the disposition of global income tax for the tax years 2003 and 2004

(1) The plaintiff's assertion

(A) Of the land that the Plaintiff transferred to 203, ① 00 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 15,00 won after investing KRW 50% in the name of the Plaintiff, and thereafter transferring KRW 115,00,00 won to KRW 162,00,000, KRW 26,500 won, respectively, KRW 26,000 won, KRW 200, KRW 300, KRW 400, KRW 500, KRW 200, KRW 300, KRW 400, KRW 500, KRW 60, KRW 200, KRW 300, KRW 16,000, KRW 200, KRW 333,816,000, KRW 800, KRW 200, KRW 46,300,000.

(B) Of the 17 pieces of land that the Plaintiff transferred to 204, ① 00 0 0 0 x 20 0 0 x 30 0 0 , 30 , 40 , 20 , 30 , 30 , 40 , 40 , 7 , 30 , 40 , 670 , 200 , 30 , 30 , 40 , 5 , 30 , 40 , 40 , 5 , 7 , 100 , 7 , 40 , 7 , 70 , 100 , 6 , 30 , 40 , 70 , 70 , 100 , 70 , 100 , 70 , 700 , 100 , 100

(2) Determination

(4) In light of the purport of each of the above 00 ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 200, 700, 16666, 200, 208, 300, 300, 400.

C. As to the assertion that necessary expense deduction was made from 2002 to 2004

(1) The plaintiff's assertion

In transferring land over several occasions from 2002 to 2004, the Plaintiff: (a) around November 30, 2002, uf081; (b) KRW 5,50,000,000 as the expense for permission to divert the land of ○○○○○○○○○○○○, ○○○○○○, ○○○○○○, on or around November 30, 2002; (c) around February 8, 2003, uf0, uf00,000 won as the expense for diverting the land of 7 parts of the unclaimed graves on the above land; (d) around October 4, 2004, 270,000 won as the cost for changing the form and quality of the above land; and (d) around October 4, 2004, the Plaintiff and ○○○○, 000,000 won as the expense for deducting each of the above global income tax of 1 to 2000,2000.

(ii)judgments

The burden of proving the legality of taxation is against the tax authority, so the tax authority bears the burden of proof in principle, as necessary expenses, which are the basis of the determination of taxable income, but the tax authority bears the burden of proof. However, the deduction of necessary expenses is more favorable to the taxpayer, and most of the facts constituting the basis of necessary expenses are located within the control area of the taxpayer and thus the tax authority is difficult to prove. Thus, if it is reasonable to have the taxpayer prove the burden by taking into account the difficulty of proof or equity between the parties, the need of proof should be returned to the taxpayer (see Supreme Court Decision 91Nu109, Jul. 28,

In light of the above facts, Gap evidence Nos. 5 and Eul evidence Nos. 8 (including number 1 to 30), each statement of evidence Nos. 8 and Eul evidence Nos. 11 (including number 8 to 11) as well as the following circumstances shown in the argument of this case, i.e., uf081, when the plaintiff undergoes tax investigation from the defendant for more than two months, or until the time of filing a request for examination as to each of the tax dispositions of this case, uf086 won including acquisition tax and interest, etc., 118,753,86 won in total, but there are no arguments as to the necessary expenses of this case or submission of materials (see evidence No. 1, e., e., e., 200-1 to 1-1 of evidence Nos. 1 of this case). Since 50-1 and 2 of this case were all uf082 plaintiffs, it is difficult to confirm that the plaintiff already issued tax invoice No. 1, 20500-1, and 405 of each of this case.

(d) Tax amount payable.

In full view of the statements in Eul evidence No. 6 and the recognized evidence mentioned above, the comprehensive income tax for the pertinent year that the plaintiff shall pay from 2000 to 2004 shall be as follows:

Year

(a) Business income amount:

/ Necessary cost (b)

(b)the tax base (b)(a)

Amount of payable tax

200

125,989,100

73,062,187

52,926,913

18,506,000

201

231,500,000

204,188,032

27,311,968

6,115,000

202

41,575,000

26,005,902

15,569,098

1,564,000

2003

892,879,297

476,293,145

416,586,152

185,407,00

204

1,751,089,625

841,441,138

909,648,487

374,242,00

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed in its entirety 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.

[Supreme Court Decision 2008Du12849 (No. 25, 2008)]

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

Although examining all of the records of this case and the judgment of the court below and the grounds of appeal, it is clear that the appellant’s grounds of appeal fall under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal, and thus, the appeal is dismissed pursuant to Article 5 of the same Act. It is so decided as per Disposition by