Examination-transfer 2016-012 ( December 21, 2016)

The succession price of loans is included in the transfer price in return for the transfer price of sales right.

The transfer price of loans received from the transferee of the right to sell shall constitute a transfer price including the price of the transfer of the right to sell.

Article 96 of the Income Tax Act

Seoul Administrative Court-2017-Gu group-5896 Revocation of Disposition of Imposing capital gains tax;

Gu on the premise that the transfer value of the sale right is 436,00,000 won (50 won for acquisition value)

Article 98 of the Restriction of Special Taxation Act (Amended by Act No. 13797, Jan. 19, 2016; hereinafter the same shall apply) Article 98

The application of 7-7 is claimed and the application for capital gains tax reduction was made.

C. However, the defendant applies Article 98-7 of the Restriction of Special Taxation Act to the transfer of the sale right of this case.

On April 11, 2016, the transfer income tax on the Plaintiff for the year 2014, deeming that it does not belong to the Plaintiff.

5,414,90 won (including additional tax) was imposed (hereinafter referred to as "instant disposition").

D. Since the transfer value of the instant sales right was KRW 418,00,000, the Plaintiff’s disposition of this case

On June 27, 2016, with respect to the instant disposition that was wholly or partially unlawful, the Director of the Seoul Regional Tax Office.

The Seoul Regional Tax Office, however, filed an objection on July 18, 2016 by the Plaintiff.

Each of them was filed with the Commissioner of the National Tax Service on October 11, 2016, but the Commissioner of the National Tax Service filed a request for examination on December 12, 2016.

21. The Plaintiff’s request for review was dismissed.

[Ground of recognition] No dispute, Gap evidence Nos. 1 through 8, Eul evidence Nos. 3 and 4, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff reported the transfer value of the sales right of this case to KRW 436,000,000, whichever was later;

18,000,000 won part payments in the name of the plaintiff in respect of the right to sell this case by the plaintiff

The price for the transfer of the sales right of this case is only the price for the convenience to succeed to the loan contract.

Therefore, the transfer value of the sales right of this case is 418,00,000 won.

Meanwhile, the Defendant’s employees are entitled to transfer the sales right of this case to the Plaintiff.

-7 Payment of the special rural development tax equivalent to 20% of the abated or exempted tax amount under the premise that the tax is applied;

The plaintiff was informed and the plaintiff's legitimate belief that the disposition of this case was not made.

The transfer value of the sales right of this case was not corrected to KRW 418,000,000 without having been granted the trust.

In this case, the defendant's disposition before the defendant was taken, and thereby, the plaintiff's legitimate trust is good.

The action was conducted.

Therefore, the disposition of this case is serious mistake in the calculation of the transfer value, or is not constitutional.

It should be considered illegal in violation of the principle of trust protection recognized as the legal principle.

B. Determination

1) First, according to each description of evidence Nos. 1 and 2 as to the first argument, the origin

The sales amount of August 28, 2014 with respect to the sale and purchase of the sales right of this case between J and HB

A sales contract consisting of KRW 418,000,000 was prepared on October 13, 2014.

436,000,000 won may be recognized as the fact that the sales contract has been re-established, but this may not apply

The facts alone are insufficient to acknowledge the Plaintiff’s assertion, and evidence to acknowledge otherwise.

Therefore, even if the plaintiff's assertion can be acknowledged, Article 95 (1) of the Income Tax Act can be applied.

As the total amount of capital gains is defined as the transfer value, the total amount of capital gains here shall be the same.

In a specific transaction, the transferor does not refer to the objective value of the assets, but to the relevant transaction;

all income acquired as consideration for the transfer of assets, and the amount of such consideration

under the substance over form principle, the economic substance, regardless of the name thereof, shall be the quantity of the property.

It should be determined by whether or not there is a quid pro quo relationship with the Do (Supreme Court on July 14, 1992).

As seen earlier, 18,00,000 won each of the instant sales rights. See Supreme Court Decision 92Nu2967 delivered on January 1, 200

The money paid to the Plaintiff was included in the purchase price under the contract, from the viewpoint of the B.

The transfer value shall be included in the transfer value, but in the future, the apartment after the sale right or the sale

The plaintiff can obtain gains from the transfer income tax, and in the process of taking over the sale right of this case, the plaintiff

In the end, any money that is provided with convenience to which part payments are succeeded from the part payments and is paid in addition to the part payments.

The transfer value is deemed to have been included in the transfer value, and the plaintiff may also be deemed to have been

Since it was recognized as a branch, the preliminary return of capital gains tax base due to the transfer of the sales right of this case.

B, it appears that the transfer value of the sales right of this case included KRW 18,000,00 in the transfer value of the sales right of this case

Considering the objective nature of 18,000,000 won and the awareness of 18,00 won with the Plaintiff and 2B

of this case, regardless of the title thereof, as the money received in return for the transfer of the right to sell this case.

It is reasonable to view that the transfer value is included.

2) Regarding the second argument, no evidence exists to acknowledge the plaintiff's assertion

and even if the employee had been informed of the payment of the rural income tax, such guidance must be made.

section 98-7 of the former Restriction of Special Taxation Act applies to the transfer of the right to sell this case.

tax, even if it is difficult to regard it as an expression of public opinion, and if it is interpreted that it is not, tax;

The principle of trust and good faith or the principle of protection of trust in a legal relationship sacrifices the principle of legality.

there are special circumstances in which the protection of taxpayer's trust is deemed consistent with the definition.

applicable only to the case, and trust in the conduct of a tax authority as an exceptional legal principle

In order to apply the principles of this subparagraph, trust granted by tax authorities through public opinion lists, etc.

a reasonable and reasonable expectation for a taxpayer;

The former Tax Act (Supreme Court Decision 2011Du5940 Decided December 26, 2013) (Supreme Court Decision 2011Du5940 Decided December 26, 201).

Since the fact that Article 98-7 of the Special Restriction Act does not apply is apparent in the text of the law, the plaintiff as to it.

The trust can not be seen as being reasonable or based on legitimate expectations.

C. Sub-committee

Therefore, the plaintiff's assertion is without merit, and the disposition of this case is legitimate.

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.

Park AA

s. Head of the tax office

August 23, 2017

1. The plaintiff's claim is dismissed.

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

Defendant’s transfer income tax amounting to KRW 5,414,990 for the Plaintiff on April 11, 2016 (additional tax) for the year 2014.

(including) revoke the disposition of imposition.

1. Details of the disposition;

A. On December 8, 2012, the Plaintiff acquired the right to sell apartment units, ○○-dong, Seoul, ○○○-dong, ○○○○-dong, ○○○○, ○○-dong, hereinafter referred to as “instant right to sell an apartment unit”) and sold it to B on October 13, 2014.

B. The Plaintiff’s preliminary return of the tax base of capital gains upon the transfer of the sales right of this case