2013west 3181

Any disposition imposing capital gains tax by calculating the conversion value even if the actual acquisition value of land can be verified is illegal.

The Plaintiff calculated the acquisition value of land shares as the conversion value on the ground that the Plaintiff could not verify the acquisition value of land shares due to the failure to submit a written contract on the instant land shares, and notified the transfer income tax, but the actual acquisition value may be estimated at KRW 180 million due to the transferor’s testimony, recording of conversations between co- acquisitors, etc.

Article 97 of the Income Tax Act

Revocation of disposition imposing capital gains tax

○ Kim

Head of Geumcheon Tax Office

October 07, 2014

November 28, 2014

1. The Defendant’s disposition of imposition of KRW 84,501,00 (including additional tax) for the transfer income tax corresponding to the year 2010 against the Plaintiff on December 6, 2012 shall be 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. The Plaintiff is the mother of the deceased ○○○ (Death on January 12, 2012) and is the heir of ○○○.

B. On November 25, 2002, Seocho-gu, Seoul ○○○○○○○○○○○○○○○, 1,422 square meters, acquired 575.165/17/17 of the instant land or the instant land share (hereinafter “instant land or the instant land share”), and on July 21, 2010, the instant land share was expropriated with the Korea Land Corporation by consultation on public land, but did not file a transfer income report.

C. The Defendant: (a) assessed the acquisition value of the instant land’s share based on the conversion price on the ground that the actual acquisition value of the instant share cannot be confirmed; and (b) decided on December 6, 2012 to the Plaintiff, who was the heir of Seocho ○○○, as the heir of the instant land, KRW 84,501,00 (including additional tax 14,198,031, and additional tax 13,510,846) for the transfer income tax for the year 2010; and (c) notified the instant disposition.

D. On January 31, 2013, the Plaintiff filed an appeal with the Tax Tribunal on July 3, 2013 upon filing an objection to the instant disposition. On January 6, 2014, the Tax Tribunal rendered a decision to re-examine the actual acquisition value of the instant land by verifying a sales contract for the instant land shares and the transfer value of Kim, the former owner, Kim, the transfer value of the instant land, and the details and facts of the report on the transfer income tax on the instant shares transferred to ○○○○○○○○○○○○○○○○○○○○○○○○○○ Association, and accordingly, to rectify the tax base and tax amount.

E. After the above ruling, the Defendant maintained the instant disposition on February 18, 2014 after re-audit.

Facts that there is no dispute over recognition, entry in Gap1-1, 1-2, 2-1, and 2-2, and the purport of the whole pleadings.

2. Summary of the plaintiff's assertion

○○○, along with Nonparty ○○○, purchased the instant land at KRW 362 million with Nonparty 1,200, and shared the purchase price at KRW 1/2,000 to transfer ownership registration. However, Nonparty ○○○○○○○○○○○○○○○○ Branch paid the purchase price with public funds of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 16 million. As such, the instant disposition was unlawful by applying the value of the instant land.

3. Whether the disposition is lawful;

(a) Facts of recognition;

1) On November 25, 2002, Seo ○○ and Park ○○○ completed the registration of ownership transfer with respect to the portion of 575.165 percent after purchasing the instant land from Kim○○ on November 25, 2002. At this time, the payment of purchase price was made through the Park○○ who is a head of the ○○○○ Association.

2) Around August 2003, 000 won, ○○○○○○○○ Association demanded Park○ and Seo-○○○○ to transfer the instant land share. Accordingly, on November 11, 2003, 200, ○○○○○○○○○○○ Association transferred the shares of the instant land to Nonparty○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on September 16, 2003, with the right ○○○○○○○○○○, the secretary of the above church, as a mortgagee, set up a collective security right of KRW 240,000 won and returned the purchase price or transferred shares. The ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 2,006. 7 billion on December 13, 2004, 2006.

3) On November 22, 2006, Seo-gu, Seoul, ○○○-dong, ○○○-○○○○○, 238.3 square meters, and its ground-based and garmentment and 1st floor building (1st floor, 82.98 square meters, underground room 31.4 square meters) have completed the registration of creation of a mortgage over the ○○ Bank Co., Ltd., a secured party, with a maximum claim amount of KRW 165,000,000. Meanwhile, on August 17, 2006, the Plaintiff’s name completed the registration of creation of a mortgage over the ○○○○-dong, Seoul, ○○○-dong, 79 square meters, its ground-based trees, and sacriftiesd housing (10-3 square meters), which had been registered as a creditor Co.,,, Ltd., ○○○○ Mutual Savings Bank, the debtor, and Seo-gu.

4) The Kim○, the transferor of the instant land’s share, was present as a witness on the third date for pleading of the instant case, and stated that Park○ and Seo-○○ transferred approximately 1,150.33/1,757 of the instant land’s share to about 1,200,000 won per square. Meanwhile, Kim○ reported the transfer income tax by applying the transfer value of the instant land to the standard market price on April 30, 2003, but the transfer income tax was reduced or exempted pursuant to Article 69 of the Restriction of Special Taxation Act.

5) On August 2013, Seo-○○, a co-born of the instant disposition, confirmed the instant land transaction agreement, receipt, and other relevant documents. According to this, on August 20, 2002, 200, 150 million won in intermediate payment on September 17, 2002, and on September 23, 2002, 187 billion won in total (70 million won in collateral security debt acquisition) including the remainder of 10,000,000 won in total, but 362 million won in total, it later asserted that Park○○ cannot find relevant documents on the grounds of directors, etc.

6) At the time ○○○○ acquired the instant land’s share, the registration of creation of a mortgage on the instant land’s share was made with respect to the maximum debt amount of KRW 98 million, KRW 00,000 for a mortgagee ○ Agricultural Cooperative, KRW 00,000 for a mortgagee ○○ Agricultural Cooperative, and KRW 00,000 for a superficies creation with respect to ○○ Agricultural Cooperative. However, on

Facts having no dispute over recognition, Gap6, 7, 9-1, 9-2, 10-1, 10-2, 11, Eul 2-1, and 2-2, each statement of evidence, witness Kim ○, and Park ○'s testimony and the purport of the whole pleadings.

B. Determination

In light of the following circumstances, although the Plaintiff failed to submit a written contract on the share of the instant land at around 00,000 won, the Plaintiff testified that ○○○○○○○○○ was to sell the instant land on a usual basis. This is similar to 362 million won of the acquisition value of each share of ○○○○○○○○○○○○, which was alleged by the Plaintiff, (1280,000,000,000 won, if the total sale area is divided into 282.12,000,000,000 won, and the amount of money returned to the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, which was a co-owner of the instant land at the time of acquiring the share of the instant land at KRW 27,000,00,000,00.

4. Conclusion

Therefore, the plaintiff's claim is justified.