Seocho 209west 2150 (Law No. 9.10, 2009)

In the case of simple exchange, it is necessary to make it impossible to verify the actual acquisition value.

In the case of an exchange, in the case of an exchange, the market price appraisal of the object of exchange as a value exchange and accompanied by the procedure for settlement of the difference in the appraisal value, the actual acquisition value may be verified, but in the case of a simple exchange, the actual acquisition value shall not be confirmed.

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

1. The Defendant’s imposition of capital gains tax of KRW 199,923,410 on December 11, 2008 against the Plaintiff on December 11, 2008, which exceeds KRW 186,668,317, shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. The 15th portion of the litigation costs shall be borne by the plaintiff, and the remaining amount by the defendant, respectively.

The Defendant’s disposition of imposition of KRW 199,923,410 for the Plaintiff on December 11, 2008 shall be revoked.

1. Circumstances of dispositions;

A. On June 4, 2007, the Plaintiff transferred 00,000,000,000,000 ○○○○-dong 72-25,09.4m2, the above ○○-dong 72-26m26m2, and 1,480,62m2 of each of the above above-ground commercial buildings (hereinafter “the entire real estate of this case”) owned by the Plaintiff to KRW 5 billion.

B. Around that time, the Plaintiff filed a preliminary return on the tax base of capital gains in relation to the transfer of the instant real estate, the date of acquisition shall be September 4, 1998, and the transfer value shall be KRW 5 billion with the actual transaction value, and the transfer value shall be KRW 2,820,93,333, and the transfer income tax shall be reported and paid KRW 562,983,613.

C. After the tax investigation on July 23, 1998, the Plaintiff entered into a contract to exchange the instant real estate and the instant real estate owned by HanB, which was originally owned by the Plaintiff, with the land of △△△△△△-3, △△△△△△-4, and the above-ground telecoming building (hereinafter referred to as “real estate owned by the Plaintiff prior to the exchange”), which was originally owned by the Plaintiff, and acquired the instant real estate around September 1998.

D. Accordingly, on December 11, 2008, the Defendant calculated the amount of capital gains tax of this case as the acquisition value of the real estate of this case on the premise that it is impossible to confirm the actual transaction price at the time of acquisition of the real estate of this case, on the premise that the conversion amount under Articles 97 (1) 1 (b) and 114 (7) of the Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007; hereinafter the same shall apply), and Article 176-2 (2) 2 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008; hereinafter the same shall apply) is 2,309,253,170 won and calculated the amount as the acquisition value of the real estate of this case, and then issued a disposition of this case to additionally correct and notify 19,923,410 won as the capital gains tax reverted in 207.

[Reasons for Recognition] Evidence No. 1-1, Evidence No. 1-2, Evidence No. 2-1 to 7 of Evidence No. 2, the purport of the whole pleadings

2. Whether a disposition is lawful

A. The plaintiff's assertion

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

(1) In exchanging the Plaintiff’s real estate prior to the exchange of the instant real estate, the Plaintiff and Korea-B determined each value on the basis of lease deposit, loan, and monthly rent, etc. At the time, the value of the instant real estate is calculated as KRW 2.77 billion more than the value of the Plaintiff’s real estate prior to the exchange, and the Plaintiff calculated as KRW 2.57 billion more than the value of the Plaintiff’s real estate prior to the exchange, and paid KRW 250 million as the settlement amount, which is the difference in the exchange. As such, the acquisition value of the instant real estate can be deemed as KRW 2.82 billion in total, including the value of the instant real estate at the time of the exchange, KRW 2.73 billion and KRW 47 million,000,000,000,000,000,000 won, including acquisition tax, at the time of the exchange. Therefore, the acquisition value of the instant real estate cannot be confirmed as the actual transaction value at the time of acquisition.

(2) Even if it is impossible to confirm the actual transaction value at the time of acquiring the instant real estate, since the Plaintiff paid 250 million won, which is the exchange difference paid by the Plaintiff to BB in acquiring the instant real estate, as settlement amount, determination of the acquisition value of the instant real estate by adding up the above amount to the conversion value of the instant real estate accords with the principle of substantial taxation.

(3)In addition, even if it is impossible to confirm the actual transaction price at the time of the acquisition of the instant real estate, the Defendant calculated the conversion acquisition price of the instant real estate by mistake in calculating the standard market price at the time of the acquisition of the instant real estate and the standard market price at the time of the transfer.

(b) Related statutes;

Attached Form 1 is as shown in the relevant statutes.

C. Determination

(1) As to the First Claim

(A) According to the provisions of Articles 96(1), 97(1)1(a) and (b), 100(1), and 114(7) of the Income Tax Act, where real estate is transferred after January 1, 2007 and the actual transaction price is determined by applying the method of an estimate investigation in order of business example, appraisal value, and conversion value as reported by a taxpayer, in case where the actual transaction price is not recognized or confirmed because the actual transaction price is verified, or where there is no evidence, such as the taxpayer’s account book, etc., on the acquisition price, even if the actual transaction price is verified, or it is obvious that it is false, the actual transaction price is determined by applying the method of estimate investigation. Meanwhile, the actual acquisition price of the relevant asset, which serves as the basis of calculating the transfer income tax amount, refers to the value acquired by the transferor at the time of the transaction and paid for the price, which is objectively recognizable by sales contract or other documentary evidence. Thus, if a transaction is an exchange, it should be confirmed that the market price of the object subject to exchange is a sale price.

(b)Therefore, we examine whether the actual transaction value at the time of the acquisition of the instant real estate constitutes a case in which it is impossible to verify.

In full view of Gap evidence No. 4, Eul evidence No. 5-1 through 3, Eul evidence No. 7 and the purport of the whole arguments and arguments, the real estate exchange contract between the plaintiff and HanB, which had been an object of exchange of real estate held by the plaintiff before the exchange of the real estate of this case, shall be 120 million won, monthly rent 17 million won, loan 520 million won, and loan 50 million won, respectively, with the purport that the plaintiff shall pay 250 million won, monthly rent 12 million won, loan 500 million won, and loan 50 million won, without having determined the exchange value of the real estate of this case between July 24, 1998 and September 23, 198, the real estate exchange contract between HanB, which was related to the real estate of this case, shall be 250 million won, and the plaintiff shall be 500 million won, and the real estate transaction of this case shall be 500,000 won,00 won,00 won,000 won.

According to the above facts, solely on the circumstance that the contents of the above exchange transaction contract and the Plaintiff paid KRW 250 million to the BB as above, the acquisition value of the instant real estate at the time of the above exchange cannot be confirmed, and there is no other evidence to acknowledge this, so the instant real estate constitutes a case where it is impossible to confirm the actual transaction value at the time of acquisition. In addition, there is no evidence to acknowledge that there is transaction example or appraisal value at the time of acquisition of the instant real estate. Accordingly, in relation to the calculation of the transfer income tax of the instant real estate, the conversion price under Article 176-2 (2) 2 of the Enforcement Decree of the Income Tax Act

(2)As to the second argument

Although the Plaintiff paid KRW 250,000,000 to BB as settlement amount in the course of acquiring the instant real estate through the exchange transaction as above, as seen above, it cannot be confirmed the actual transaction value at the time of acquiring the instant real estate as seen above, and as long as the amount calculated by converting the actual transaction value at the time of acquisition by the standard market price at the time of transfer pursuant to Article 176-2 (2) 2 of the Enforcement Decree of the Income Tax Act is deemed as the acquisition value by the ratio occupied by the standard market price at the time of transfer to the standard market price at the time of transfer because there is no transaction example and appraisal value at the time of acquisition, the conversion acquisition value calculated as above is deemed the actual transaction value at the time of acquisition of the instant real estate. Thus, the sum of the above 250,000

(3)Third arguments

In light of the overall purport of the pleadings on each entry of evidence Nos. 6 and 7, the standard market price of a building shall be calculated as the area of a building subject to x value per square meter. The amount per square meter shall be calculated based on the remaining ratio by the number of years elapsed in the x structural use indexx. Among the real estate in this case, the total floor area of a building among the real estate in this case is 1,480.62 square meters as a reinforced concrete tank living facilities, and the new construction year is 196 square meters. The building price of this case is 100% in the calculation method of the building price of January 1, 2007, and the remaining ratio is 0.78 in the case of new construction year of 196, the remaining ratio is 1,485 square meters in the area of the building in this case, and the defendant calculated the remaining ratio as the standard market price of the real estate in this case at the time of the acquisition of the real estate in this case by mistakenly applying the above 300.726.

(d) Justifiable tax amount.

Therefore, in light of the purport of the entire pleadings as to legitimate tax amount, the individual land price per square meter in 1998, which was at the time of the acquisition of land among the real estate in this case, was each 2,970,000 won, and the individual land price per square meter in 2007, which was at the time of the transfer, was each 8,070,000 won, respectively, and the standard market price of the building in 198, which was at the time of the acquisition of the building among the real estate in this case, was 3,40,00 won per square meter; and the standard market price of the building in 2007, which was at the time of the transfer, was 429,000 won per square meter.

According to the above facts, the standard market price at the time of acquiring the real estate of this case is KRW 1,295,389,427, and the standard market price at the time of transferring the real estate of this case is KRW 2,758,40,980 when calculated according to the following calculation. Thus, the conversion price for acquiring the real estate of this case is KRW 2,348,078,646 (=1,295,389,427 won at the time of acquiring the real estate of this case x the standard market price at the time of acquiring the real estate of this case / 2,758,402,980 won at the time of transferring the real estate of this case).

Standard market price at the time of acquisition: 1,295,389,427 won (=1781,407,00 won +2513,982,427 won)

(1) The standard market price of land shall be KRW 781,40,000.

0

(2) The building standard market price shall be 513,982,427 won (less than 1 won).

0

○ Standard market price at the time of transfer: 2,758,402,980 won (=12,123,217,00 won +2635,185,980 won)

(1) The standard market price of land 2,123,217,000 won.

0

(2) The standard market price of a building shall be 635,185,980 won

0

The additional transfer income tax for the year 2007, calculated accordingly, is KRW 186,668,317, such as the statement of tax invoice in attached Form 2.

3. Conclusion

Therefore, the portion exceeding KRW 186,668,317 of the disposition of this case is unlawful and thus revoked, and the remainder of the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.