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분양권을 양도한 사실은 있으나, 계약서 및 양도가액은 허위라는 주장의 당부(기각)
조세심판원 조세심판 | 2009-01-18 | 조심2008중3545 | 양도
[Case Number]

Early High Court Decision 2008J 3545 ( October 19, 2009)

[Items]

Transfer

[Types of Decision]

Dismissal

[Summary of Decision]

The transfer income tax shall be levied on the sale price under the sales contract of the sale right because the transfer right is transferred, but the transfer income tax is not reported.

[Related Acts]

Article 16 of the Framework Act on National Taxes

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A. The claimant transferred the right to sell an OO apartment Nos. 109 2301, 2301, 000, 000 OOO-dong 183, 000,000,000 (hereinafter referred to as “right to sell”), but did not report the transfer income tax.

(b)On May 2, 2008, the Director of the OO notified the content of the sales contract (as the transferor, transferee, transferee's bookO, transfer value 63 million won on June 8, 200, transfer value 63 million won on the date of the contract, hereinafter referred to as "market contract") submitted by the OO at the time of the investigation into the transfer of the right to sell parcels of the OO, the Office of Administration decided and notified the claimant of the transfer income tax of 32,616,300 won on May 2, 2008 in accordance with the contents of the contract;

C. The claimant appealed and filed an appeal on October 13, 2008 after filing an objection on June 26, 2008.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

The claimant is designated as an OO residential environment improvement zone in 183, the daily price of which is located in the Gyeonggi-do OOO-dong, Seoul Metropolitan City, and the residents in the project district have been specially supplied. However, it is not transferred to the OO, but it is clear that the purchaser at the time of the investigation is not known because the current sales contract is not kept, but the contract submitted in the course of the investigation is not prepared by the person himself/herself. Thus, it is unreasonable that the disposition agency imposed tax on the basis of the transfer price under the contract.

(b) Opinions of disposition agencies;

The claimant only claims that there is no fact that the contract form, which is the basis of taxation, has been prepared, and there is no objective evidentiary document submitted. However, according to the contents of the contract form and the contract form on the sales contract form and the contract form on the succession of rights and obligations, it is confirmed that the claimant acquired the right to sell on May 24, 200 and transferred the right to sell to the PO on June 8, 200, and thus, it is difficult for the claimant to accept the above claim.

3. Hearing and determination

A. Key issue

The validity of the claimant's assertion that the transfer price stated in the key contract and the key contract, which is the basis of the tax disposition, is false, although the right to sell was transferred.

(b) Related statutes;

(1) Article 16 of the Framework Act on National Taxes - (1) Where a person liable for tax payment keeps and enters a book under tax-related Acts, the examination and determination of the tax base of the national tax concerned shall be based on the book kept and entered and related documentary evidence.

(2) In examining and determining national taxes under paragraph (1), if the contents of the entry are different from facts or are omitted from the entry, only such part may be determined in accordance with the facts examined by the Government.

(2) Article 94 of the Income Tax Act (amended by Act No. 6292 of Dec. 29, 2000) (the scope of transfer income) Article 94 of the Income Tax Act refers to the following income generated during the year:

1. Income accruing from transferring buildings or land;

2. Income accruing from transfer of any right to real estates determined by the Presidential Decree; and

C. Facts and determination

(1) The following facts are confirmed according to the review data, such as the key contract, the confirmation center for the payment of occupancy fees, the sales contract by the OOOO, and the integrated national tax computer network data.

(A) After receiving an investigation from the head of the office of tax office on capital gains tax, he/she submitted an issue contract as data related to the acquisition of the right to sell this case. The key issue contract is that the claimant (However, the claimant's name side of the claimant's name is affixed with the seal of the representative whose name is not verified accurately) transfers the right to sell to the PO on June 8, 200 to the PO on the 63 million won.

(B) On May 24, 2000, “OOO's sales contract” appears to have been concluded between the head of the headquarters of the regional headquarters of the Association and the claimant on May 24, 200, “OOO's main apartment 109 dong 2301”. According to “the contract for succession to rights and obligations,” a contract for succession to rights and obligations was concluded on June 8, 200 between OOO's head of the regional headquarters (A), the claimant (B), and SO's head of the headquarters. The main contents are that “A soldier succeeds to all the rights and obligations of the subdivision contract concluded on May 24, 200 between A and B (the first contractor permit only once).”

(C) Also, “the confirmation date of the payment of the purchase price” appears to be “the date of the first contract for the sale price” as “the date of the first contract for the sale price,” and it appears that the sale price was succeeded in the order of the claimant, bookO, classO, and KimO.

(2) 이에 대하여 청구인은 당시 소위 “떴다방”을 통하여 분양권을 3,200만원에 양도하였고, 1세대 1주택 비과세 규정이 적용된다고 생각하여 양도소득세를 신고·납부하지 않은 사실은 있으나, 서OO에게 이 건 분양권을 양도한 사실도 없고, 특히 쟁점계약서는 청구인이 작성한 사실이 없는 허위의 계약서이므로 이를 근거로 과세하는 것은 부당하다고 주장하며, 증빙자료로 청구인의 서OO 등에 대한 고소장(OO경찰서에 서OO 등을 사문서위조 등의 혐의로 고소)을 제출하였다.

(3) According to the following: (a) the claimant did not transfer the right to sell in lots to POO; (b) the claimant asserts that the contract is a false contract; (c) the contract is also a false contract; (d) the claimant acquired the right to sell in lots on May 24, 200 and transferred the right to sell in lots to POO on June 8, 200 after the claimant acquired the right to sell in lots; (d) the claimant did not think of the clear transfer value of the receipt, etc. at the time of filing an objection; (e) the claimant did not think of the fact that the transfer value is 32 million won when the claimant filed an appeal; (e) the claimant submitted a written complaint to the O police station on October 7, 2008; (e) it was merely a temporary receipt (civil petition) which is not a regular receipt; and (e) it is difficult for the claimant to accept the claim in question in full view of the following facts: (e) it is confirmed that the person in charge of criminal affairs explained the relevant contents to the applicant and other objective arguments presented by the claimant.

4. Conclusion

This case shall be decided as ordered under the provisions of Articles 81 and 65(1)2 of the Framework Act on National Taxes, because the petition is without merit as a result of the review.

January 19, 2009

chief tax judge this Decree

Tax Judges Embrypt.

50

Park Ho-ho

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