District Court-2016-Gu Partnership-7021 (Law No. 11, 2017.07.11)

If the transfer of assets is made by payment in kind, the amount of debt shall be deemed the acquisition value of the assets.

Since the damages are recognized to be repaid as a building, it is necessary to recognize the total amount of damages, lease deposit, and loan as acquisition value.

Article 97 (Calculation of Necessary Expenses in Transfer Income)

Seoul High Court 2017Nu63643 Revocation of imposition of capital gains tax

O

OO Head of the tax office

December 19, 2017

. 16, 201

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On March 3, 2015, the Defendant’s disposition to impose the capital gains tax of 2004 on the Plaintiff shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reasoning for the court’s explanation on this case is as stated in the reasoning of the judgment of the court of first instance, except for the second instance’s decision as follows. Thus, this Court shall accept it in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts in height:

○ 제1심 판결문 제3면 제5 〜 13행을 다음과 같이 고침

A. The plaintiff's assertion

The Plaintiff acquired each of the buildings of this case from GangnamO and MaO in lieu of the repayment. The Plaintiff acquired the each of the buildings of this case, and acquired the lease deposit and the loan obligations of MaOO with respect to each of the buildings of this case. Therefore, the instant disposition that assessed the acquisition value of each of the buildings of this case only KRW 100,000,000,000,000,000 won for the lease deposit acquired by the Plaintiff, and KRW 200,000,000,000 won for the lease deposit acquired by the Plaintiff, and KRW 30,000,000,000,000 won for each of the buildings of this case should be deemed the acquisition value and necessary expenses for each of the buildings of this case.

○ 제1심 판결문 제4 〜 5면의 표를 다음과 같이 고침

○ On the 5th judgment of the first instance court, the Court shall dismiss the 7th "this Court" as the "court of the first instance", and add the 5th "IO for witnesses" in front of the 6th "O for witnesses".

D. Determination

1) Relevant legal principles, etc.

According to the proviso of Article 96 (1) 6 of the former Income Tax Act (amended by Act No. 7597 of Dec. 31, 2005), where the actual transaction price at the time of transfer or acquisition proves the actual transaction price at the time of transfer, capital gains shall be calculated based on the actual transaction price, and Articles 97 (1) and (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005), and Articles 163 (1) 1 and 89 (1) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005), necessary expenses to be deducted from the actual transaction price at the time of acquisition of assets, such as acquisition tax, registration tax, and other incidental expenses. The actual transaction price, which serves as the basis for calculating capital gains, is not the market price that reflects the objective exchange price, but also the actual amount agreed for payment of assets itself or at the time of transaction (see, 2.

2) Payment in lieu of damages claim

Comprehensively taking account of the following circumstances based on the above recognition facts, it is reasonable to view that the Plaintiff acquired each of the buildings of this case from GangnamO and MaO in lieu of satisfaction of the amount equivalent to the KRW O00 million out of the damages claim KRW O00,000,000, out of the amount of KRW 00,000,000,000,000,000,000,000,000,000.

① The Plaintiff had a damage claim of KRW 000,000,000, and KRW O00,000,000,000,000,000,000 for POs. The Plaintiff acquired each of the instant buildings was agreed upon by POs during the appellate proceedings of the fraudulent case caused by the Plaintiff’s complaint by the Plaintiff, while POs agreed with POs during the appellate proceedings of the fraudulent case against POs. Accordingly, POs and POs were sentenced to reduction on the premise of such criminal agreement.

② The Plaintiff and MaO stated in the transfer contract on each of the instant buildings that “the Plaintiff agree to make a payment in substitutes,” and the Plaintiff and MaO stated in the agreement that “the building of this case shall be acquired as a payment in substitutes.”

3) Acceptance of lease deposit obligations

According to the above facts, the plaintiff acquired the lease deposit amount of KRW 100,000 as the acquisition price of each building of this case, and thus, the lease deposit obligation as above constitutes the acquisition price of each building of this case.

4) Acceptance of loan obligations

Comprehensively taking account of the overall purport of the arguments, evidence Nos. 3 and 5, the plaintiff acquired only KRW 00,000 from GangwonO's community credit cooperatives around March 2003, and acquired KRW 00,000 from OO of the secured debt of the right to collateral security established on each of the buildings of this case at around the same time, and as seen above, the plaintiff prepared a written agreement that the plaintiff will assume the debt of KRW 0,000 in total with OO in payment for each of the buildings of this case with OO.

According to this, the plaintiff acquired the loan obligation of the above OO0,000 won as the price for the acquisition of each building of this case, and therefore, it also constitutes the acquisition value of each building of this case.

(v) acquisition tax and registration tax;

The total amount of acquisition tax and registration tax paid by the Plaintiff in the acquisition of each building of this case constitutes necessary expenses to be deducted from the transfer value.

6) Sub-determination

Therefore, the acquisition value to be deducted from the transfer value of each building of this case is the amount of KRW 00 million, which is the aggregate of KRW 00 million, KRW 000,000,000,000,000,000 for lease deposit, and KRW 00,000 for loans, and as other necessary expenses, it cannot be deemed that there was capital gains exceeding KRW 00,000,000,000 for capital gains. Therefore, the instant disposition based on the premise that there exists capital gains exists is illegal.

3. Conclusion

If so, the judgment of the first instance court accepting the plaintiff's claim is justifiable, and the defendant's appeal is dismissed as it is groundless.