Review Transfer 2009-0105 (Law No. 27, 2009)

The propriety of the disposition calculated by transaction example

The plaintiff asserts that the transaction example is unfair, but the acquisition value is unclear, and the similar property transaction example is similar to the transaction example in three months, and the disposition of the defendant is legitimate.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of capital gains tax of KRW 349,256,80 for the Plaintiff on February 3, 2009 shall be revoked.

1. Circumstances of the disposition;

A. On October 31, 1998, the Plaintiff purchased a total of 5,755 square meters, including 1,853 square meters in ○○○-dong 1096, 1096, 1096-7, and 1,983 square meters in ○○-dong 1096-8, and 1,919 square meters in ○○-dong 1096-8, and completed the registration of ownership transfer in the name of the Plaintiff. Meanwhile, ○○-si, where the instant real estate is located, was designated as a land speculation area on August 25, 2004, and was revoked on November 7, 2008.

B. The instant real estate was knocked at KRW 1,506,600,000 to KimB and ChoCC on October 26, 2005 in the course of the voluntary auction of real estate (hereinafter “transfer of this case”) by △△△ District Court ○○○○○ Branch 2004ta, 1808.

C. On April 27, 2007, the Plaintiff calculated capital gains tax at KRW 1,506,60,000, acquisition value at KRW 1,470,000, based on the actual transaction value in relation to the transfer of this case, and filed a return after the deadline for tax base of capital gains tax.

D. On February 3, 2009, the Defendant: (a) deemed that the evidential document of the acquisition value of the instant real estate was insufficient and thus it is impossible to verify the actual transaction value at the time of acquisition; (b) calculated the acquisition value of the instant real estate as KRW 630,14(5) of the Income Tax Act (amended by Act No. 7837, Dec. 31, 2005; hereinafter the same shall apply) and Article 176-2(3)1 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254, Dec. 31, 2005; hereinafter the same shall apply); and (c) calculated the acquisition value of the instant real estate as KRW 630,90 of the sales value of the instant real estate as the sales value of October 8, 198; and (c) calculated the acquisition value of the instant real estate as the acquisition value of the instant real estate as the acquisition value of the real estate as the acquisition value of the instant real estate as the sales value of 630, 109050,290.

[Ground of recognition] Evidence Nos. 8, Eul No. 1-2, Eul No. 5, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's principal

The instant disposition should be revoked on the ground that it is unlawful for the following reasons.

(1) The Plaintiff purchased the instant real estate in KRW 1.47 billion from the competent AA, and the actual transaction price at the time of the acquisition of the instant real estate is KRW 1.477 billion. Thus, the acquisition price of the instant real estate constitutes “where the actual transaction price at the time of acquisition cannot be confirmed” under Article 97(1)1(c) of the Income Tax Act, and thus, it cannot be applied to this case.

(2) Even if it is not so, since the real estate of this case is connected to the second line road, the sale price of the real estate of this case is no example of business transaction of the real estate of this case, considering the fact that the plaintiff acquired the real estate of this case, while there was a difference between the value of the land that was not connected to the road at the time that the plaintiff acquired the real estate of this case, and that the defendant set up a collateral security right to the real estate of this case as the secured claim the amount higher than the acquisition price of the real estate of this case after the plaintiff acquired the land of this case, the sale price of the real estate of this case cannot be deemed to be an example of business transaction of the real estate of this case, since the land of this case cannot be deemed to be the land identical or similar to the land of this case. Therefore, the acquisition price of the real estate of this case shall

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Documentary evidence concerning the sale price of the real estate in the instant case

(A) As above, the Plaintiff filed a return after the tax base of capital gains with the Plaintiff and the trading party A, and submitted a real estate transaction agreement (hereinafter “the instant sales contract”) dated March 4, 1998, which became the subject matter of the instant real estate, and two copies of receipts in the name of NA (hereinafter “the instant receipt”).

(B) The instant sales contract contains the following: (a) the sales price of the instant real estate was KRW 1.477 billion; and (b) the Plaintiff paid KRW 270 million to the competentA on the day of the sales contract; (b) the intermediate payment of KRW 600 million on April 24, 1998; and (c) the remainder of KRW 600 million on May 24, 1998; and (d) the special terms and conditions that each payment was made on May 24, 1998; and (b) the seller appears to have been made to have been returned from the lessor (hereinafter referred to as the “Lessee”) after it was difficult to repair the crops of dry field that was currently leased and return the rental contract to the buyer; and (b) the seller’s name is written in the seller’s column **********.

(C) On April 24, 1998, through May 24, 1998, the receipt of this case contains the content that the AA was paid KRW 600 million by the Plaintiff as an intermediate payment or a balance, and the resident registration number of the publisher’s column ****************.

(D) On the other hand, in the course of the tax investigation related to the transfer of the instant real estate, the competent AA divided into a sales contract of the instant real estate, and details of transactions, such as sales price at the time of the sale, are not memory. The seal of the sales contract of the instant real estate and the receipt shall be based on the seal of the competent A, but the seal of the name on the sales contract of the instant real estate and the receipt shall be identical to the seal of the competent A, but the pen is not its own seal, and the instant real estate was sold at a price higher than the surrounding market at the time of the sale, and each written confirmation prepared to the effect that there was no lease prior to the sale of the instant real estate,

(e) However, each of the above confirmations submitted by the IC as above are written as ***************.

(f) In the course of the Defendant’s tax investigation, the Plaintiff did not request the submission of financial data, etc. to know that the Plaintiff actually paid KRW 1,4770,000 as the purchase price of the instant real estate, and did not submit them.

(G) The acquisition value of the instant real property, which the Plaintiff acquired and paid the instant real property, was merely KRW 290,560,000.

(2) Location, etc. of this case's real estate and sales case's land

(A) The annual individual land price of the instant real estate and the sale case land is as follows:

(B) On the land utilization plan, the instant real estate and the land for sales cases are designated as both agricultural and forest areas, restricted areas for permission for development activities, and agricultural promotion areas.

(C) The instant land adjoins the farm road with a width of about 5.6 meters and a width of about 5 meters, and the ratio of the width and length in the cadastral map to the width of about 4.5:8.6. The land transaction case is a rectangular form in which the ratio of the width and length in the cadastral map seems to be against approximately 4.5:8.6. The land transaction case is a rectangular form in which the ratio of the width and length to the width of the road is 1:8.5 square meters, adjacent to the ditch on the basis of the ditches.

(D) As of July 2009, the instant real estate and the instant case land face a farm road with a width of about five meters, and the land including each of the above land is used purely as farmland.

(E) On October 120, 1998, the land for sale was sold to KRW 109,489 won per square meter (=109,489 won per square meter ±120 million ±10,096 square meter, per cubic meter).

[Reasons for Recognition] Gap evidence 1, 4, 6, Eul evidence 1-3, 4, Eul evidence 2-1, 2, Eul evidence 3, Eul

6 and 7 Evidence 1 to 4, respectively, and the purport of the whole pleadings

D. Determination

(1) According to the provisions of Articles 96(1) and 97(1)1(a) of the Income Tax Act, the transfer value and acquisition value of assets under Article 94(1)1 and 2, including the land, shall be based on the standard market price at the time of transfer or acquisition of the relevant assets. However, in the case of transfer of assets under the proviso of Article 96(1) of the Income Tax Act, including real estate within the designated area, the transfer value and acquisition value shall be calculated based on the exceptional transaction price. In addition, according to the provisions of Article 114(5) of the Income Tax Act and Article 176-2(1) and (3) of the Enforcement Decree of the Income Tax Act, even if the acquisition value are based on the actual transaction price, if it is impossible to recognize or confirm the actual transaction price at the time of acquisition of the relevant assets, the transfer price cannot be the actual transaction price reported by the transferor.

(2) As the first note:

Therefore, I first examine whether it is impossible to confirm the actual transaction price at the time of acquiring the real estate of this case.

According to the above facts, the sales contract and receipts of this case are different from the contents of the sales contract and receipts of this case, and they are different from the seller's resident registration number, and it is difficult to regard them as the sales contract or receipts for the actual payment of the purchase price. There is no other evidence to deem that the plaintiff acquired the real estate of this case from the rightA with respect to the real estate of this case. Thus, in this case, there is no evidentiary document to recognize or confirm the actual transaction price at the time of the acquisition of the transferred asset, or there is no lack of material part. Thus, the actual transaction price at the time of the acquisition of the real estate of this case constitutes "the case where it is impossible to recognize or confirm the actual transaction price at the time of the acquisition" under the main sentence of Article 114 (5) of the Income Tax Act, and it can be calculated by the estimation method. Thus, the plaintiff's above assertion is without merit.

(3) As the second note:

(A) According to Article 114(5) of the Income Tax Act and Article 176-2(3) of the Enforcement Decree of the Income Tax Act, where the actual transaction value at the time of acquisition cannot be recognized or confirmed, and where the actual transaction value at the time of acquisition is based on the estimation investigation method, it refers to the transaction example of assets which are identical or similar to the relevant assets (excluding stocks of a stock-listed corporation or Association-registered corporation) within 3 months before and after the date of acquisition.

(B) Therefore, we examine whether the sales price of the land in the sale case can be seen as a transaction example of the real estate in this case.

Various circumstances revealed in the above facts, i.e., the land in the sale and purchase case, cannot be deemed to be a blind spot because one side comes to the farm road. The real estate in this case and the land in this case are located in an agricultural promotion area where development activities are restricted, and their land category and actual use are farmland and merely a relatively small farm road and they are adjacent to each other. The mere fact that there are some differences between the two, before and after the acquisition of the real estate in this case, does not seem to have any difference in the market price of the above land. Since 190, the officially assessed land price of the real estate in this case and the land in this case were continuously or almost the same in 198, when the Plaintiff acquired the real estate in this case, the officially assessed land price of the real estate in this case is equal or greater as the officially assessed land price of the real estate in this case, and the Plaintiff cannot be deemed to have any other unlawful acquisition price of the real estate in this case through the sale and purchase case of the real estate in this case from March 9, 1998.

[Plaintiff asserts that the acquisition value of the instant real estate should be determined by appraising the market price as at the time of the Plaintiff’s acquisition of the instant real estate. Therefore, it is reasonable to view the sale value on October 9, 1998 of the land similar to the instant real estate as a transaction example of similar assets within 3 months from the acquisition of the instant real estate. In addition, it is necessary to understand the actual transfer value in order to fulfill the substance over form principle. As such, the actual acquisition value refers to recognizing by a sales contract or other documentary evidence that the transferor is the value actually required for the acquisition of the relevant real estate, and it is not to raise an awareness of the objective exchange value at the time of acquisition by retroactive appraisal (see Supreme Court Decision 91Nu10848, May 12, 1992). The Plaintiff’s above assertion is without merit.

In other words, the plaintiff asserts to the purport that the acquisition value of the real estate of this case should be determined by applying the value of the above ○○○dong 1102 land rather than the sale price. However, there is no data to identify the similarity between the above ○○dong 1102 land and the real estate of this case, and the sale price of the above ○○dong 1102 land. Thus, the plaintiff's assertion is without merit without any further

(4) Therefore, on the ground that the Defendant’s actual transaction value at the time of acquiring the instant real estate constitutes a case where it is impossible to confirm the actual transaction value at the time of acquiring the instant real estate, the instant disposition of taxation rendered by calculating the acquisition value of the instant real estate by considering the sales price as transaction example in October 9, 198.

3. Conclusion

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