National Tax Service Review and Transfer 2010-029 ( October 12, 2010)

Disposition that calculates gains on transfer on the basis of acquisition on the approval agreement

Since a sales contract between parties to a transaction is prepared and the approval seal of the competent authority is affixed, it shall be presumed that a house has been acquired with the acquisition value under the sales contract, and there is no evidence that the approval seal contract has been falsely prepared,

2011Gudan542 Revocation of Disposition of Imposing capital gains tax

XX

Head of Seodaemun Tax Office

September 27, 2011

October 25, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 74,166,070 for the Plaintiff on June 9, 2010 shall be revoked.

1. Details of the disposition;

A. On May 7, 2002, the Plaintiff acquired and owned 0-00 square meters of Seoul Mapo-gu Seoul Metropolitan Government 0-00 square meters and 764.365 square meters of its ground (hereinafter referred to as the “instant house”) and filed a transfer income tax report on May 10, 2004 with the acquisition value of the instant house as KRW 65 million and the transfer value of the instant house as KRW 72 million.

B. However, on June 9, 2010, with respect to the Plaintiff, the Plaintiff considered the transfer value of the instant housing as KRW 226 million and the acquisition value as KRW 65 million and decided to increase the transfer income tax of KRW 74,166,070 for the year 2004 (hereinafter “instant disposition”).

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff is a false contract with an approval seal of KRW 65 million at the time of the acquisition of the instant housing, which was made out for the purpose of reducing acquisition tax and transfer income tax. In such a case, the acquisition value ought to be calculated at a conversion price by deeming that the acquisition value cannot be known. Therefore, the instant disposition that was otherwise reported is unlawful.

(b) Fact of recognition;

(1) The Plaintiff purchased the instant house from thisA and prepared a sales contract of KRW 65 million and received an approval seal from the competent authority (the head of Seodaemun-gu).

(2) The Plaintiff transferred the instant house to KRW 22.6 million.

[Reasons for Recognition] The above evidence, each of the evidence of Nos. 2 through 4 (including each number), and the purport of the whole pleading

C. Determination

Unless there are special circumstances, the seal of approval issued by the parties to a transaction and affixed with the seal of approval of the head of a Si/Gun, etc. shall be presumed to have been prepared in accordance with the sales contract between the parties, and the assertion that the contract was prepared differently from the actual ones shall be proved (see, e.g., Supreme Court Decision 93Nu2353, Apr. 9,

In this case, as seen earlier, the Plaintiff prepared a sales contract with the purchase price of KRW 65 million between the Plaintiff and thisA and obtained the approval seal of the competent authority. Thus, barring special circumstances, the Plaintiff is presumed to have acquired the instant house with the KRW 65 million, and the testimony of the witness DB alone is insufficient to recognize that the said approval seal contract was prepared in a false manner, and there is no other evidence to support this otherwise. Therefore, the Plaintiff’s above assertion is without merit.

Therefore, the instant disposition that calculated the transfer margin by deeming the acquisition value of the instant housing as KRW 65 million under the approval agreement as lawful.

3. Conclusion

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