Whether foreign exchange loss on the balance of the redemption loan borrowed at the time of acquiring real estate shall be deducted in calculating transfer margin.

The exchange marginal profit corresponding to a loan shall be excluded from the transfer marginal profit from the transfer of a house.

2015Gudan50842 Revocation of Disposition of Imposing capital gains tax

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The director of the tax office.

May 20, 2015

June 26, 2015

1. On April 7, 2014, the part exceeding x,293,040 won among the capital gains taxx,228,170 (including the additional tax) belonging to the Plaintiff for the year 201 that the Defendant had made against the Plaintiff on April 7, 2014 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On September 3, 2007, the Plaintiff and △△△△△△ acquired housing located in Singapore (hereinafter “instant housing”) at USD 2,660,814.79 of Singapore (SGD; hereinafter “US”) (the Plaintiff’s shares: 2/3 and 1/3) xxxxx. 2,70,000 on May 29, 200.

B. At the time of the acquisition of the instant house, the Plaintiff and △△△△△ was loaned USD 1,806,000 from the financial company located in Singapore (OOBK) to the parent-base loan and used it as the acquisition fund. After that, at the time of the transfer of the instant house, USD 1,690,957.38,000, excluding USD 115,806,000, which was already paid, was repaid at the time of the transfer of the said house.

C. Meanwhile, with respect to the transfer of the instant house, the Plaintiff: USD 4,724.79 = ($ 2,700,000 for transfer value - USD 1,690,957.38 for base loan - USD 43,910 for transfer cost)-($ 2,660,814.79-base loan 1,806,000 for base loan + USD 115,042.62) incurred transfer loss; and the Plaintiff did not report transfer income tax, etc. to the Defendant in relation to the transfer of the instant house.

D. However, on April 7, 2014, the Defendant deemed that the acquisition value and transfer value of the instant housing, including bank loans, were converted by applying the basic exchange rate at the time of acquisition and transfer, and notified the Plaintiff of KRW 217,228,170 (including additional tax) of the transfer income accrued in 2011 (hereinafter “instant disposition”).

E. The Plaintiff filed an objection and filed an appeal with the Tax Tribunal on September 16, 2014, but was dismissed on December 1, 2014.

[Ground of recognition] Facts without dispute, Gap 1-8 evidence, Eul 1-1 evidence (including paper numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The assertion

(1) The plaintiff's assertion

The Plaintiff, when acquiring the instant housing, borrowed part of the acquisition price from a local financial company and transferred it to the local financial company, was immediately repaid to the local financial company, and as long as profits or losses from exchange rate fluctuations were not incurred as long as the Plaintiff received the said loan and remitted or repaid it to the Republic of Korea. Nevertheless, the Defendant: (a) was subject to taxation on gains from transfer calculated by applying the fiscal exchange rate to the acquisition value and transfer value of the entire purchase price including the mother base theory; (b) in such a case, the loan includes the nominal exchange gains from the loan; (c) thus, it is unlawful in violation of the principle of substantial taxation and the nature of income tax. Therefore, the portion of the instant disposition in excess of the reasonable tax amount (63,293,040) calculated by

(2) The defendant's assertion

According to the relevant Acts and subordinate statutes, the acquisition and transfer value of assets abroad shall be based on the actual transaction value. The borrowings are included as a matter of course. The conversion, etc. of gains from transfer into foreign currency shall be calculated in Korean won converted into the basic exchange rate or financial exchange rate pursuant to the Foreign Exchange Transactions Act as of the date when the transfer value and necessary expenses are received or disbursed, and there is no provision that the income tax shall be subtracted from the loan at the time of transfer margin. The Defendant’

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

In cases where a resident acquires a house overseas by obtaining a housing mortgage loan in foreign currency, the exchange marginal profit of the transfer value corresponding to a loan shall be offset inevitably by necessarily accompanying the exchange marginal profit of a loan to be repaid in foreign currency at the time of the transfer; and in cases where the Income Tax Act includes the transfer marginal profit by adding up the gains from the transfer of assets overseas to the gains from the transfer of assets in foreign currency, even though the transfer gains are included in the gains from the transfer due to the exchange rate fluctuations, the exchange marginal profit of the transfer value paid in foreign currency shall be reflected only in the transfer marginal profit and the exchange marginal profit of a loan to be repaid in foreign currency shall not be deducted from the transfer marginal profit from the transfer marginal profit from the transfer of a house (see Supreme Court Decision 2013Du2819, Jul. 24, 2014).

In this case, since the exchange marginal profit corresponding to the loan money is not actually acquired by the plaintiff, it should be excluded from the transfer marginal profit, the disposition of this case imposing the transfer income tax on the ground that the transfer marginal profit is included in the exchange marginal profit not actually acquired by the plaintiff is illegal. In case where the transfer marginal profit from the loan is excluded from the transfer marginal profit, the total transfer income tax to be paid by the plaintiff is 63,293,040 won (the defendant does not dispute the amount).

Therefore, the part of the instant disposition exceeding KRW 63,293,040 is unlawful.

3. Conclusion

If so, the plaintiff's claim is justified and accepted.