Seocho 2013west 0764 (Law No. 13, 2013)

Although the transfer value of the building on the purchase and sale reservation document is written at zero won, a disposition in which the land and the building are calculated according to the standard market price is legitimate.

In the sales contract, the part in which the sales price of the building is zero won cannot be supported by the actual transaction price of the building, and otherwise, there is no evidence to verify the actual transfer price of the building of this case, and thus a disposition distributed proportionally to the standard market price of the land and the building is legitimate.

2013 old-gu 53328 Disposition of refusal to correct capital gains tax

KimA

Samsung Head of Samsung Tax Office

October 16, 2013

November 27, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s refusal to rectify capital gains tax against the Plaintiff on October 15, 2012 shall be revoked.

1. Details of the disposition;

A. On November 3, 2010, the Plaintiff transferred OO-dong 1337-6 large 559.3 square meters, 1337-7 large 330.6 square meters (hereinafter referred to as “instant land”) and buildings on the ground thereof (hereinafter referred to as “instant building”) to OOO (hereinafter referred to as “OO-related transfer”), and reported and paid OOOOOO (hereinafter referred to as “instant transfer”) on January 31, 201.

B. From June 21, 2012 to July 10, 2012, the Defendant determined the pro rata of the transfer income tax on the instant transfer based on the standard market price, namely, the pro rata value divided according to the premise that the distinction between the transfer value of the instant land and buildings is unclear.

C. The Plaintiff asserted that the long-term possession special deduction was insufficiently appropriated on the premise that the transfer value of the instant building is an O won, and filed a claim for correction with the Defendant seeking a refund of the transfer income tax OOOO members on August 30, 2012, but the Defendant rejected the claim on October 15, 2012 on the ground that the transfer value of the instant building cannot be deemed as an O won (hereinafter “instant disposition”).

D. The Plaintiff had completed the pre-trial procedure.

[Ground of recognition] Facts without dispute, Gap 2 through 4, 6 through 7-2, 11, 12, Eul 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant building had no asset value due to its aging, and the non-party company planned to remove the instant building and build a new building. In light of such circumstances, the Plaintiff and the non-party company determined the transaction value of the instant building as zero won. Therefore, the instant disposition that was made on the premise that the transfer price of the instant building is unclear is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

2. On September 20, 2010, the first sale contract for the instant land and building contains special terms and conditions, and on September 20, 2010, “1. The building price is expected to be destroyed, and at the same time, it shall be borne by the purchaser in the event of subsequent occurrence of value-added tax on the building. 2. At the same time, the lessee succeeds to the buyer and the rental deposit shall be excluded from the remainder. 3. In general transfer and acquisition, however, the value-added tax shall be borne by the purchaser if it is impossible.”

With respect to the building in this case, the assessed value by the Korea Appraisal Board on November 25, 2008 is the OOO, the assessed value on the balance sheet in 2009 prepared by the plaintiff, the assessed value on May 20, 2010 on the market price survey by the foreign exchange bank is the OO, and the rental deposit for the lease of the building in this case at the time of the transfer of this case is the aggregate amount of OOO and the monthly rent is the OOO.

On June 21, 2012, Plaintiff 2012: As to the reasons stated in Paragraph 1 of the Special Agreement on the Terms and Conditions of the Sales Contract, “The acquired corporation is expected to immediately destroy and construct an officetel after acquiring the said real estate, so it is not possible to comprehensively acquire the real estate for rent, so it is necessary to collect 10% of the value-added tax on the value of the building from the purchaser and report and pay it separately, and the transferee speaks about this problem, and the transferee states that this content should be stated as a special agreement in preparation for the problem.”

○ Around March 2, 2011, Nonparty Company removed or destroyed the instant building and newly built a new building on the ground of the instant land around May 24, 2013.

[Grounds for recognition] Gap 2, 7-2, 8, 12, Eul 2 through 7, the purport of the whole pleadings

D. Determination

(1) Whether the transfer of the instant building constitutes a commercial transfer

① The Plaintiff did not donate the instant building to the Nonparty Company, but transferred it by entering into a sales contract. ② The sales contract is a representative onerous contract, and the transfer of assets under the sales contract is merely a restoration of the name, or is not a gratuitous transfer in light of the actual legal relations that form the basis of the sale and purchase, in principle, subject to the transfer income tax as a compensatory transfer under the Income Tax Act (see, e.g., Supreme Court Decision 2003Du4362, Aug. 19, 2003). ③ According to the special terms and conditions on the sales contract as to the burden of value-added tax, the Plaintiff and the Nonparty Company appears to have expressed the sales price of the instant building as KRW 0 in consideration of the total sales price of the instant building and land and the transaction cost, including value-added tax, and thus, it is reasonable to deem that the instant building has been transferred with consideration of the fact that there is no substantial legal relations to be deemed a gratuitous transfer, even if the instant building had been transferred pursuant to the sales contract.

(2) Whether the actual transaction price of the instant building is zero won or more

If a sales contract concerning the acquisition and transfer, a transaction confirmation and a certificate of personal seal impression, etc. of a contracting party were submitted as evidentiary documents concerning actual transaction price, the tax authority, in principle, shall calculate gains on transfer based on the actual transaction price under the sales contract (see, e.g., Supreme Court Decision 95Nu3183, Jun. 25, 1996). However, in special circumstances where it is impossible to believe the entry in the sales contract, the entry in the contract alone cannot be confirmed (see, e.g., Supreme Court Decision 96Nu5810, Jun. 27, 1997). As seen earlier, insofar as it is found that the transfer of the building in this case is a onerous transfer, the portion on which the sales price of the building in this sales contract in this case is zero won cannot be proven to support the actual transaction price of the building, and no other data to verify the actual transfer price of the building in this case is presented

(3) Conclusion

Therefore, the instant disposition is legitimate on the premise that the transfer of the instant building is deemed a commercial transfer, but the actual transfer value of the instant building and land is not different from each other.

3. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit.