2012 Heavy 4339 ( December 31, 2013)

The fact that the depreciation asset value on the balance sheet cannot be viewed as an actual acquisition value.

Even if the asset value is entered in the book, it shall not be deemed that the entry has the effect of confirming the actual acquisition value of the asset, and even if the amount included in the profit for calculating the income amount of the corporation, it shall not be deemed the normal price unless there

Suwon District Court 2013Gudan12083 Revocation of Disposition of Imposing Transfer Income Tax

O KimO

O Head of tax office

November 19, 2014

December 17, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of the capital gains tax of 2009 against the Plaintiff on August 13, 2012 is revoked.

1. Details of the disposition;

A. The Plaintiff completed the registration of transfer of ownership on the ground of sale on December 3, 1982, as the receipt No. 14479 on March 24, 198, with regard to the OO-dong O-dong O-dong 221-5 large scale 547 square meters (hereinafter “O-dong”).

B. In early 194, the Plaintiff newly constructed the instant building of 21.35 square meters on the instant land, c and lubial tanks, the three-story neighborhood living facilities, 100.87 square meters on the 1st floor, 2nd floor, 97.75 square meters on the 3nd floor, and 97.75 square meters on the 3nd floor (hereinafter “instant building,” and “the instant real estate” is referred to as “the instant building in combination with the instant land”), and completed the registration of initial ownership on January 20, 1994 by the OO registry office No. 4275 on January 20, 1994.

C. On June 12, 2009, the Plaintiff sold the instant real estate to EO (hereinafter “instant transfer”), and completed each registration of the transfer of ownership on the instant real estate as the OO registry No. 49108, Jun. 17, 2009, respectively, due to the sale on June 12, 2009.

D. On August 26, 2009, when the Plaintiff filed a return on the tax base of transfer of this case with the Defendant on the transfer of this case, the Plaintiff asserted that the second and third floors of this case were used as housing, and paid the entire building of this case by deeming it as one house for one household [690 (1590-900)/1590 (total transfer value) of high-priced housing exceeding 900 million won], the tax baseOO, the tax amount to be voluntarily paid as OO of the tax amount (hereinafter “the instant return”).

E. From April 16, 2012 to April 30, 2012, the Defendant conducted a field investigation on the instant report, and determined that the third floor of the instant building is a house, the second floor is used as a space for restaurant business, and that only the third floor of the instant building is exempt from taxation due to one house for one household, and thus, on August 13, 2012, the Defendant issued a disposition of imposition of the OO of the capital gains tax for the year 2009 (hereinafter referred to as “the initial disposition”).

F. On October 9, 2012, the Plaintiff filed a petition for trial with the Tax Tribunal on the initial disposition of this case (hereinafter referred to as “request for trial”).

The "request for adjudication" was made.

G. On August 5, 2013, the Plaintiff filed a lawsuit seeking the revocation of the initial disposition of this case with the delayed decision on the instant petition for adjudication.

H. On December 31, 2013, the Tax Tribunal: (a) on the instant appeal filed against the Plaintiff on December 31, 2013, the Director of the Tax Tribunal:

On August 27, 2012, the disposition of imposition of the capital gains tax for the year 2009 imposed on the Plaintiff on the Plaintiff was also determined that OO constitutes the second floor of the 2nd floor of the OO-dong 221-5 above 221-5 above OO-dong 2000, and the tax base and tax amount were corrected, and the remainder of the appeal is dismissed (hereinafter referred to as the "instant decision").

I. On January 22, 2014, according to the instant decision, the Defendant: (a) reduced the amount of the capital gains tax originally disposed of to the Plaintiff; and (b) issued a disposition to rectify the tax amount on the transfer of this case as the OO won (hereinafter “instant disposition”).

[Reasons for Recognition] Facts that there is no dispute between the parties, Gap evidence 1 through 9 (including paper numbers), Eul evidence 1

Evidence Nos. 3 through 3, each entry of evidence No. 5, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Claim as to the acquisition value of a building

(A) In rendering the initial disposition of this case, the Defendant recognized the Plaintiff’s acquisition value of O0,000 won paid to OOO as the acquisition value of the building, but corrected the acquisition value of the building in rendering the disposition of this case as the conversion value of the building. The acquisition value of the building of this case must be recognized as O0 won under the depreciation specifications.

(B) According to the evidence Nos. 16-1 and 2, the first construction cost of the instant building is an OO member, and the acquisition value of the instant building was added to the amount determined by acquisition tax and registration tax to the OO members (i.e., OO won + OO won).

(2) Other assertions as to necessary expenses

(A) The brokerage commission paid by the Plaintiff to WhiteO in connection with the transfer of the instant case shall be deemed necessary expenses at the time of the instant initial disposition, and the instant disposition shall also be deemed necessary expenses (the Plaintiff directly transferred KRW 00 million to OO by the Plaintiff, and KRW 00 million to the Plaintiff’s spouse).

(B) Capital expenses, including value-added tax reporting, that the Plaintiff spent on the instant building should also be recognized as necessary expenses.

(C) The amount of KRW 00 million paid by the Plaintiff to O was recognized as the acquisition value of the building at the time of the initial disposition of this case. The disposition of this case is recognized as the transfer cost among the necessary expenses.

section 3.

(D) The substantial reason for the payment of money in return for collection of money and fixtures under an agreement with OO is compensation for nonperformance of the original term of lease (10 years).

(b) Fact of recognition;

Evidence cited above 10-5, 6, A, 11, 12, 14 (including various numbers), and A,

15 The following facts may be acknowledged if each statement in the evidence of heading 15 is neglected:

(1) In filing the final return on the tax base of income tax and special tax for rural development for the year 1995 with the head of the OO, the principal income earner reported the income of the plaintiff's family subject to OO and OO won as the total income of the plaintiff's family subject to OO won, and described OO won in the attached calculation statement of the scope of depreciation and depreciation (hereinafter referred to as "specification of this case") as the depreciation asset value in the balance sheet of the building of this case as the depreciation asset value of this case.

(2) In filing a final return on a general taxable person’s value-added tax with the head of the OO tax office:

(A) The purchase amount of fixed assets out of the input tax amount on January 23, 2006 (from July 1, 2005 to December 31, 2005) calculated on January 2005 as the OO members;

(B) Attached Form attached to the preparatory document dated April 7, 2014, 201, among the input tax amount on July 24, 2006 (from January 1, 2006 to June 30, 2006) for the purchase amount of fixed assets, among the input tax amount for one-year period (from January 1, 2006 to June 30, 2006).

No. 2 of the capital expenditure No. 2 reported at the Schedule Time of Value-Added Tax is deemed to be a clerical error or intentional omission;

(C) The purchase amount of fixed assets out of the input tax amount on January 15, 2007 (from July 1, 2006 to December 31, 2006) calculated on January 2006 shall be KRW 00,000,00.

(D) On July 18, 2009, the purchase amount of fixed assets among the input tax amount during the first half of 2009 (from April 1, 2009 to June 30, 2009) was stated as O0,000 won (the Plaintiff’s capital expenditure No. 4 at the time when the return of value-added tax was filed on the attached Table attached to the preparatory document as of April 7, 2014) including the tax amount. However, as seen below, each of the above parts was reported as O0 won, which is claimed by the Plaintiff to have been paid to O.

(3) EOO entered into a lease agreement with the Plaintiff on the instant building, and between April 6, 2008 and February 28, 2009, “OOO” operated the business (business registration number: O-O-O-O-O-O-O-O-O-O-O-O-O).

(4) On May 18, 2009, with regard to the transfer of the instant real estate between MaO, a lessee of the instant building, the Plaintiff drafted an agreement to compensate MaO for the Plaintiff’s remuneration for the instant building between February 18, 2008 and March 2008, and between MaOOO, for the cost borne by the Plaintiff in relation to the interior interior interior interior interior interior interior interior interior interior decoration and colonation, etc. (hereinafter “instant agreement”).

(5) In accordance with the instant agreement, the Plaintiff:

(A) on May 19, 2009

(B) on May 23, 2009:

(C) On June 8, 2009, the Plaintiff paid the sum of the OO members [The Plaintiff asserted that the said amount is KRW 0,000,000, KRW 00,000, KRW 00, KRW 00, KRW 00, KRW 00, KRW 00, KRW 00, KRW 00, KRW 00, KRW 00, and other compensation.]

(6) On May 2009, the Plaintiff transferred the instant building to the Korea Electric Power Corporation in the name of the OOO (No. 10-6 No. 4 of the evidence A). The water rate No. 10-6 of the instant building is a clerical error in the electrical charge.

I think)

(7) On May 2009, the Plaintiff transferred the amount of OO in the name of the Plaintiff to OOO in the instant building (electric charges No. 10-6 No. 10-6 No. 10, the amount of water charges, and OO appears to have been written in error of OO won).

(8) Around May 2009, the Plaintiff transferred KRW 0,000 to OO (the representative or licensed real estate agent of the OO Licensed Real Estate Agent Office listed in Evidence A-12-1).

(9) Around May 2009, the CO transferred KRW 00,000 to the above O.

(10) In filing the instant report on August 26, 2009, the Plaintiff:

(A) The transfer value of the instant real estate is OO(=OOO(land) + OOO(building)).

(B) The acquisition value of the instant real estate as OO Won (=OOA + OOOO(building)),

(C) The necessary expenses were reported respectively as OOO (specific contents are referred to as Gap evidence 5).

(11) In making the initial disposition of this case (tax exemption and commercial building taxation)

(A) The transfer value of the instant real estate as OO

(B) The acquisition value of the instant real estate is recognized as the actual transaction value of the OO (the acquisition value of the instant building is recognized as the OO (the amount that the Plaintiff paid to OO, May 2009) + OO(the cost of urban gas input, May 2005) + OOO(the amount of local tax paid, May 2, 1994) (the expenditure, December 199). The instant building is divided into the instant building and the instant building into the housing and the commercial building, and divided into each standard market price (house: OO and the commercial building: OO). The acquisition value of the commercial building (the building) is divided into the housing and the commercial building, and the conversion price of the land is recognized as the OO.).

(C) The necessary expenses acknowledged each of the O0 million won, which is part of the brokerage fees claimed by the Plaintiff to have paid to OO in connection with the instant transfer.

(12) In rendering the instant disposition, the Defendant:

(A) The transfer value of the instant real estate is OO(OOO(land) + OOO(building)).

(B) The conversion acquisition value of the real estate of this case is calculated by converting the acquisition value of the real estate of this case to OO (OOO(land + OOO(building) + the conversion acquisition value is applied, considering that the acquisition value is higher than the actual capital expenditure value of the real estate of this case recognized as the actual expenditure value of the real estate of this case, among OO(O0,000 won ( or actually recognized as having been paid) paid to OOO by the defendant, which was recognized as the acquisition value of the initial disposition of this case by the defendant as the acquisition value of the building of this case)

(c)The acquisition standard market price of the immovable property of this case shall be the OO (O=OO's land + O's (building)).

(D) The necessary expenses are recognized as 3% of the above standard market price of each acquisition (=OOO(land + OOO(building) respectively.

C. Relevant statutes

The entries in the attached Table-related statutes are as follows.

D. Determination

(1) Determination as to the assertion of building acquisition value of this case

(A) The actual transaction price, which is the basis for calculating gains from transfer, is not a general market price that reflects the objective exchange value, but a real price for the transaction itself or at the time of the transaction, means the amount of actual agreement for the payment (see Supreme Court Decision 2006Du7171, Apr. 26, 2007). It refers to the price objectively recognized by a sales contract or other documentary evidence.

(B) Even if a taxpayer entered an asset value in a book prepared and kept by him/her, it cannot be deemed that such entry has an effect to determine the actual acquisition value of assets, and that the entry must be presumed to have an actual acquisition value, or that the entry itself has the effect to accelerate the taxpayer, it cannot be deemed that the taxpayer cannot make any assertion contrary to the entry (Supreme Court Decision 87Nu536 Decided February 9, 198).

(C) “The normal price at the time of acquisition” under Article 48(2)3 of the Enforcement Decree of the Corporate Tax Act, which is the basis for calculating gains from transfer under the Corporate Tax Act, refers to the normal price formed through ordinary transactions, or the market price appraised by a reliable appraisal institution. The real estate owner’s unilaterally recorded in the book at the asset value is not a normal price in the above meaning, unless there are special circumstances, even if it is included in the corporation’s income calculation (see Supreme Court Decision 92Nu4598 delivered on October 9, 192).

(D) The Plaintiff’s evidence (including evidence No. 16 submitted after the resumption of pleading) alone cannot be deemed as the actual acquisition value of the building of this case on the balance sheet stated in the specification of this case (the Plaintiff failed to answer the reasons why only part of the acquisition and registration taxes finalized on the fifth date for pleading included in the acquisition value of the building of this case). The instant disposition that recognized the acquisition value of the building of this case as the conversion acquisition value is legitimate.

(2) Determination as to whether an estimated deduction is applied

(A) According to Article 97(3) of the former Income Tax Act (amended by Presidential Decree No. 9897 of Dec. 31, 2009) and Article 163(3) and (6) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21934 of Dec. 31, 2009), where one’s acquisition value is based on the actual transaction value, the necessary expenses that can be deducted from the computation of gains from transfer may include the capital expenses or the cost of securing ownership of the assets. However, where the acquisition value is calculated based on the conversion value as it is impossible to verify the actual transaction value at the time of the acquisition of assets, other necessary expenses than the acquisition value can only be recognized as 3% (3/100) of the standard market value at the time of acquisition, i.e., the Plaintiff’s interpretation of the National Tax Service’s taxation guidelines to allow only the estimated amount of deduction when applying the estimated amount of transfer income tax (the Plaintiff’s assertion that the above estimated amount of income tax can not be accepted.

(B) As seen earlier, in a case where the acquisition value of the instant real estate is calculated based on the conversion value as the Plaintiff could not confirm the actual transaction value at the time of acquiring the instant real estate, necessary expenses, other than the acquisition value, which may be deducted in the process of calculating the transfer margin of the instant real estate, are only the estimated deduction calculated based on the standard market price at the time of acquiring the instant real estate. As such, necessary expenses, such as the Plaintiff’s assertion, may not be deducted

(3) Other supplementary determination as to the Plaintiff’s assertion

(A) The tax authority shall bear the burden of proving the tax base that is the basis of taxation in a lawsuit seeking the revocation of the income tax disposition, and the tax base is deducted from necessary expenses, so the tax authority shall bear the burden of proving the income and necessary expenses in principle. However, since the tax authority is not only favorable to the taxpayer, but most of the facts causing necessary expenses are located within the territory under the control of the taxpayer and the tax authority is difficult to prove. Thus, if it is reasonable to have the taxpayer prove the tax base by taking into account the difficulty of proof or equity between the parties, it accords with the concept of fairness (see Supreme Court Decision 2006Du16137, Oct. 26, 2007).

(B) Determination on the assertion of brokerage commission

The Plaintiff (or his spouse)’s KRW 0 million paid to 00 million to 00,000,000, which was recognized as necessary expenses in the initial disposition of this case and recognized as necessary expenses, does not necessarily have to be recognized as necessary expenses, and 00,000,000 won claimed by the Plaintiff as a licensed real estate agent under Article 2 subparag. 2 of the Licensed Real Estate Agents Act, is not deemed as remuneration (or brokerage commission) prescribed in Article 32(1) of the Licensed Real Estate Agents Act (the Plaintiff asserted that 0,000 won claimed by 0,000 won was a licensed real estate agent on the fifth date for pleading, but the Plaintiff submitted the reference document as of November 21, 2014, and reversed the above assertion)

(C) Determination on capital expenditure stated in the value-added tax return

In the case of the amount reported by the Plaintiff as the purchase amount of fixed assets when filing a value-added tax return, it cannot be confirmed whether each of the above amounts was actually paid, and even if such payments were made, each of the evidence submitted by the Plaintiff alone is insufficient to recognize that it was the expenses paid for the alteration, improvement or convenience of the use of transferred assets, and there is no other evidence to acknowledge it [the Plaintiff is deemed to have been part of the following O0,000 won among the capital expenditure of the Plaintiff’s claim (the Plaintiff is the Plaintiff’s claim for air-conditioning construction costs in the system established by OO)].

(D) Determination as to O0 million won paid to OO

According to the above, the plaintiff paid O00 won to OO, and among these, O00 won cannot be viewed as transfer cost, and O0 won cannot be confirmed as specific details and reasons for payment. Thus, the plaintiff's assertion on this part cannot be accepted.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.