Cho High Court Decision 2010Du0792 (Law No. 106.01)

The propriety of the disposition imposing the capital gains tax on the amount specified in the stamp contract;

The sale price is written in the approval sales contract, and the transaction confirmation on which the Plaintiff’s seal imprint is affixed is recognized as having been entered in the sale price, and the amount of the approval certificate is presumed as acquisition price

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing KRW 114,890,630 for the Plaintiff on December 1, 2009 shall be revoked.

1. Details of the disposition;

A. On March 28, 2002, the Plaintiff acquired a building with 662 square meters of land located in ○○○○○-dong, 883-1 located in ○○○, ○○, and its ground (hereinafter referred to as “real estate acquired in this case”). On January 10, 208, the Plaintiff transferred 476 square meters of land (231/331/33) and the building on the ground (hereinafter referred to as “transfer real estate in this case”) among the above 883-1 land and transferred 476 square meters of land (238/31/31/30), to KimB and JeonCC (hereinafter referred to as “transfer real estate in this case”). (b) On March 31, 2008, the Plaintiff transferred the transfer real estate in this case to ○○-dong, ○○-dong, 883-1,000 won, converted acquisition value, to 460,97,000 won, and voluntarily paid income tax base for income tax year 394.

C. After conducting a tax investigation on December 1, 2009, the Defendant: (a) deemed KRW 135,00,000 as the actual transaction price of the instant acquired real estate reported by OA as the former owner on December 1, 2009; (b) deemed it as the actual transaction price of the instant acquired real estate; (c) deemed KRW 9,206,087, which is calculated pro rata to the instant transferred real estate, as the acquisition price of the instant transferred real estate; and (d) recognized brokerage commission 29,00,000,000 as necessary expenses at the time of transfer as the necessary expenses; and (d) issued the instant disposition that additionally imposed and notified KRW 114,89

[Ground of recognition] Facts without dispute, Gap's evidence 112 evidence, Eul's evidence 1 to 4 (including a natural disaster; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff purchased the instant acquired real property from the Lao in KRW 200,000,000, and the contract amounting to KRW 135,000,000 reported by the Lao is a false contract.

In addition, the Plaintiff spent 180,000,000 won for the repair cost of the building after acquiring the instant real estate, and paid 2,000,000 won at the time of acquiring the instant real estate, and 40,000,000 won at the time of transferring the instant transferred real estate as brokerage commission.

Therefore, the acquisition value of the transferred real estate of this case should be calculated as the conversion value as the Plaintiff first reported, and the disposition of this case is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) First, examining the acquisition value of the instant acquired real estate, according to the statement in Gap evidence Nos. 8 and 10, the sale price is 135,00,000 won in the sale and purchase agreement, and even in the certificate of transaction with the Plaintiff’s seal imprint affixed with the Plaintiff’s seal imprint affixed, the sale price is 135,00,000 won. Accordingly, the actual transaction price of the instant acquired real estate shall be presumed to be 135,000 won (see Supreme Court Decision 93Nu2353, Apr. 9, 1993), Gap evidence Nos. 3 through 5, 11, and 12, each of the above presumption alone is insufficient to recognize that the actual transaction price of the instant acquired real estate is 200,000,000,000 won, or that it is impossible to confirm the actual transaction price at the time of acquisition.

(2) In addition, as to the assertion that the Plaintiff spent KRW 180,00,00 for the repair cost of the building, each statement of evidence Nos. 6, 13, and 14 alone is insufficient to recognize it, and there is no other evidence to acknowledge it.

(3) Lastly, as to the assertion that a sum of KRW 42,00,000 was paid as real estate brokerage commission, the defendant had already recognized KRW 29,00,000 as necessary expenses, as seen earlier, and there is insufficient evidence to acknowledge that the statement in the evidence No. 7 is insufficient to recognize that the plaintiff paid KRW 29,00,000 as real estate brokerage commission, and there is no evidence to support this change.

(4) Therefore, the instant disposition is lawful, and all of the Plaintiff’s allegations are without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.