(영문) 서울행정법원 2015. 01. 09. 선고 2014구합60498 판결

In principle, the tax authority shall prove the actual transaction price for the acquisition price, which is the actual transaction price, even if the actual transaction price cannot be confirmed due to the lack of the evidence, etc. when the transfer price is based on the actual transaction price.

Related statutes

Article 97 of the Income Tax Act as necessary expenses

Article 163 of the Enforcement Decree of the Income Tax Act

Cases

2014Guhap60498 Revocation of Disposition of Imposing capital gains tax

Plaintiff

Gangwon ○

Defendant

Gangwon-gu Director of the District Office

Conclusion of Pleadings

December 5, 2014

Imposition of Judgment

January 9, 2015

Text

1. The Defendant’s imposition of KRW 00,000,000 (including additional taxes) for the transfer income tax for the year 2009 on June 13, 2012 against the Plaintiff shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Details of the disposition;

A. On November 23, 1984, based on the former Public Waters Reclamation Act (amended by Act No. 3901, Dec. 31, 1986; hereinafter referred to as the “former Public Waters Reclamation Act”), the Plaintiff obtained a reclamation license from the Minister of Maritime Affairs and Fisheries with respect to 00 square meters in Busan ○○-dong (hereinafter referred to as “○○○dong”) from the Minister of Maritime Affairs and Fisheries, and buried a site of 00,000 square meters in total from January 1, 1987 to December 31, 199, and after obtaining a completion authorization from the head of Busan regional maritime affairs and fisheries office on August 29, 2001, the Plaintiff acquired a total of 00,000 square meters of reclaimed land (i.e., 00,000 square meters of reclaimed land + below 00,000 0,000 square meters of reclaimed land).

List of votes

Owners

Parcel Number

Land Category

Area of a square meter;

Bureau (Ministry of Oceans and Fisheries)

○○ 000-0

alternative:

○○ 000-00

Roads

0,000

○○ 000-00

Miscellaneous land

0,000

Sub-committees

00,000

Busan Metropolitan City

○○ 000-0

Roads

0,000

○○ 000-0

Roads

0,000

○○ 000-00

Roads

0,000

Sub-committees

0,000

Plaintiff

○○ 000-0

Miscellaneous land

00,000

○○ 000-0

Miscellaneous land

00,000

Sub-committees

00,000

Total

00,000

B. On December 30, 2009, the Plaintiff transferred 00,000 square meters of 00-0,000 miscellaneous land (hereinafter “instant land”) to 00,000,000,000 won to ○○○ Port Co., Ltd. (hereinafter “○○○ Port”) on December 30, 209, and then reported and paid KRW 00,000,000,00 as transfer income tax on February 26, 2010 by deeming that the preliminary return of transfer income tax on February 26, 2010 cannot be confirmed at the time of the acquisition of the instant land, deeming that it falls under a case where the actual transaction price cannot be confirmed at the time of the acquisition of the instant land, as the conversion price under Article 97(1)1 (b) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 209; hereinafter the same).

C. As a result of conducting a tax investigation on the transfer of the instant land from April 18, 201 to May 7, 2011, the Defendant concluded an investigation to the effect that the Plaintiff’s content of the return of capital gains tax applied the conversion price is adequate, deeming that the actual acquisition price of the instant land cannot be confirmed due to the lack of understanding of the total construction cost for reclamation of the instant reclaimed land.

D. After the planning and inspection, the Commissioner of the National Tax Service: (a) secured the “detailed statement of reclaimed construction work reported and submitted by the Plaintiff to the Busan Regional Maritime Affairs and Fisheries Office, which is the licensing authority of the reclamation work; and (b) confirmed that the total construction cost was KRW 0,000,000 (excluding value-added tax) and confirmed that the instant detailed statement constitutes “clear material to recognize suspicion of tax evasion” under Article 81-4(2)1 of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter the same) and notified the head of the Seoul Regional Tax Office of the second tax investigation and notified the Plaintiff of the tax investigation on March 10, 2012.

E. In the process of conducting the secondary tax investigation on the transfer of the instant land from March 28, 2012 to May 21, 2012, the head of Seoul Regional Tax Office: (a) deemed that the Plaintiff filed acquisition tax and registration tax with the competent regional tax office on the acquisition of the instant reclaimed land; (b) based on various evidential data submitted by the Plaintiff; and (c) the actual construction cost on the instant report by the National Tax Service’s computer network was fully reflected; and (d) deemed that the actual acquisition price of the instant land was KRW 0,000,000 for the total construction cost on the instant report (i.e., KRW 00,000 for the purchase price of the instant land x KRW 00,000 for 00 for 00,000 for 00,0000 for 00,0000 won for additional land acquisition cost; and (b) the Defendant received 00,000,000 won for additional compensation for x 9,0000.

F. The Plaintiff appealed and filed an appeal with the Tax Tribunal on August 3, 2012, but was dismissed on March 19, 2014.

[Ground of recognition] Facts without dispute, Gap's 0 to 0, 00, 00 evidence, Eul's 0, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(i) the first argument;

Article 14(1) of the Public Waters Reclamation Act provides that a reclamation licensee shall acquire the ownership of the remainder of reclaimed land except reclaimed land necessary for public or public use without any need to prove the actual project cost required for reclamation to the licensing agency. The Public Waters Reclamation Act was amended by Act No. 3901 on December 31, 1986 (hereinafter “the Public Waters Reclamation Act”). The Plaintiff subject to the Public Waters Reclamation Act before the amendment did not report all of the project cost required for reclamation to the licensing agency or make a report on the whole of the project cost required for reclamation. Thus, the Plaintiff submitted the pertinent detailed statement that only part of the project cost remaining until the date of application for the authorization of completion was submitted to the licensing agency, and thus, it cannot be deemed that the Plaintiff submitted the instant detailed statement to the Busan Regional Maritime Affairs and Fisheries Agency, which is the licensing agency, or that the Plaintiff did not have any other detailed statement that the construction cost of this case was calculated on the basis of the tax base and value-added tax that was reported and similar to the construction cost of this case.

(ii) the second argument;

Article 81-4 (2) of the former Framework Act on National Taxes provides that a re-investigation shall be strictly limited to cases where there is clear evidence to acknowledge suspicion of tax evasion, which is one of the exceptional cases where a re-audit is allowed. "Evidence of suspicion of tax evasion" does not include any material already investigated in the previous tax investigation. Even if certain material is not investigated in the previous tax investigation, it shall be excluded from the same as the already investigated material if it is actually identical to the content of other material already investigated or can be acquired by the exercise of the power of investigation granted by the tax authority under the law. However, the instant detailed statement is almost the same as the Plaintiff's report of acquisition tax, and it is also identical to Article 97 (1) of the former Income Tax Act, Article 163 (1) and Article 89 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 21934, Dec. 31, 2009; hereinafter the same shall apply). Therefore, in light of the following, a taxpayer's tax evasion should be revoked.

B. Relevant statutes

It is as shown in the attached Form.

1) After filing a report on the commencement of reclamation works on December 31, 1986, the Plaintiff entered into a construction contract with ○○○ Co., Ltd. (hereinafter referred to as “○○○”) on March 25, 1987, with the construction cost of KRW 0,00,000,000 (including value-added tax) regarding the reclamation works and the building-proof wall construction works, but made an agreement on the reduction of the construction contract on June 26, 1988 with the construction cost of KRW 00,000.

2) On January 21, 1988, Busan Japan published the following articles:

For the comprehensive development of Busan ○○ Port, a construction company in charge of coastal reclamation works has laid away from the ○○ mountain to the sea from the wind to the sea with earth and stone, and waste into the sea in an unreparable state.

In addition, this company allows construction garbage from Busan area to be dumped in 3,000 to 4,000 won per truck, making the coast and mountain as a garbage site, but the relevant authorities do not take measures to ensure that eight months have passed since the start of construction.In this wind, recently, 150 meters from the shore on the surface of ○○○○○○, in the width of 00 meters, the width of 100 meters has changed with earth and rocks and wastes, and the sea has been polluted and the sea has been discarded into the coastal fishing ground.

The company in charge of the 17 sections of the problem among the 17 sections of the ○○ only reclamation licensee (00 units of the 00 unit of the 00 unit of the 00 unit of the 00 unit of the 00 unit of the 00 unit of the 00 unit of the 00 unit of the Busan Metropolitan City (the 00 unit of the 00 unit of the 0 unit of the 00 unit of the 00 unit of the 00 unit of the 00 unit of the 00 unit of the 0 unit of the 0 unit of the 00 unit of the 1

In order to facilitate reclamation, the ○○ side illegally opens a road with a length of 2km from the ○○san road to the shore in July of the past year, and according to the flown route in transporting earth and rocks, it is possible to install a soil-to-land entry site in the eth of Atory, the 70 degrees of a slope, and the shores of a 70 degrees of a slope, by putting down garbage and turland into the shore to the shore away from 150 meters away.

The ○○ side has moved 300 meters away from dump trucks to 300 mump trucks, and buried 0,000 mump on the coast.

The shores on the shores of the mountain season in which earth and sand flows into this wind are emulated and covered by garbage. In addition, there are no water-saving facilities on the shore, and sewage and wastewater flows into the sea as they flow into the sea as they are. In particular, since the shores out of 50-150 meters away from the surface of the reclamation section on the ○○ side, the shores out of the 50-150 meters away from the ○ side, and thus, the measures to follow-up treatment after completion of the construction are also vague

3) Meanwhile, on August 24, 1987, the Plaintiff obtained permission to collect earth and stones for reclamation of public waters from 0,000 square meters for the purpose of collecting earth and stones for reclamation of public waters (20,000,000 won for construction work period from August 24, 1987 to July 1988; construction cost: 00,000,000 won).

4) On October 8, 198, the Plaintiff entered into a construction contract with ○○ Comprehensive Construction Co., Ltd. (hereinafter “○○ Comprehensive Construction”) on construction cost of KRW 0,000,000 for reclamation works (including value-added tax). ○○ Comprehensive Construction Co., Ltd. obtained permission to collect soil and stones for reclamation of public waters from 0,000 square meters for the purpose of collecting earth and stones for reclamation of public waters (the construction cost of KRW 0,000,000 for construction cost of December 7, 198).

5) The project cost details stated in the instant statement are as follows.

Details

Amount (won)

Jinay

reclamation execution expenses

5,266,580,908

Wastewater construction expenses

363,636,363

A signal light pole;

30,000,000

fishermen’s Compensation

86,328,120

Guarantee Insurance Contribution

144,054,162

Water Supply Corporation

93,307,645

Design and supervision costs

69,920,000

Streetlighting Works

29,520,000

Other public charges

5,510,637

Total

6,138,857,835

Value-Added Tax

6) The project cost statement (Evidence No. 0) submitted by the Plaintiff to the Busan Metropolitan City ○○-gu Office in relation to the registration tax is as follows.

No.

Customer

Details

Construction amount

Value of Supply

Value-added Tax

Total

○ Construction

reclamation execution expenses

0,000,000,000

00,000,000

0,000,000,000

○ Construction

reclamation execution expenses

00,000,000

○ Construction

Sewage and Wastewater Construction Expenses

00,000,000

○ Technology Development

Supervision fees

00,000,000

○ Enterprise

A signal light pole;

00,000,000

0,000,000

00,000,000

○ ○ Heavy Electricity

A rear road construction project site for a rear road;

00,000,000

0,000,000

00,000,000

○ Safety Diagnosis

CCTV shooting and waste water construction costs;

00,000,000

0,000,000

00,000,000

○○ Surety Insurance

Surety insurance

00,000,000

fishermen’s Compensation

00,000,000

Other public charges and others

00,000,000

00,000

00,000,000

Water supply system construction costs;

00,000,000

○

Design and service costs

0,000,000

Total

0,000,000,000

00,000,000

0,000,000,000

7) The details of the tax invoice that the Plaintiff received from the contractor with the services of reclamation work from the contractor are as follows.

Date

Customer

Details of Transactions

Value of supply (cost)

Jinay

Above 1987 up to 1988

○

The creation of ○ Seaside Road and the internal reclamation works

00,000,000

CHAPTER 4

between 1988 and 2001

○ General Construction

reclamation execution expenses

0,000,000,000

13 Chapter 13

Above 1994 to 1995

○ General Construction

Sewage Pipeline Construction

00,000,000

CHAPTER 4

From 1994 to 2000

○○ Electrical and six other companies

Design services, CCTV filmings, signal lamps and street lamps;

00,000,000

13 Chapter 13

Total

0,000,000,000

8) The Plaintiff leased the instant reclaimed land. The book value of the instant reclaimed land in 2001 stated in the balance sheet among the details of the report on the real estate rental business place that the Plaintiff reported to the National Tax Service was KRW 0,000,000.

9) On August 29, 2001, the Plaintiff offered the State with the reclamation work at the time of authorization on completion of reclamation work of public waters and acquired the ownership of the instant reclaimed land in return, and issued a tax invoice to the State with the total construction cost as the tax base (supply price). The details are as follows.

(unit: 1,000 won)

Classification

Sales Price

Purchase

Jinay

1, 2001

00,000

Port Loading and Unloading Sales

2, 2001

0,000,000

Port Loading and Unloading + Sales of Land Purchase Construction Works

10) Pursuant to the Public Waters Reclamation Act after the amendment, ○○○ obtained a license for reclamation of public waters with respect to 00-0 adjacent to the reclaimed land of this case on November 12, 1991, and obtained authorization of completion on May 31, 2001 after performing reclamation work from January 29, 1993 to December 31, 199. The amount and details of the project cost stated in the certificate of completion and the completed area are as follows.

o Total Project Costs: 00,000,000 won

o Total Project Costs: 0,000,000,000

o The completed area: 00,000 square meters in total;

- Acquisition by 00,000 square meters

- State ownership: 0,000 square meters;

- Reclaimed land for public use: 0,000 square meters

o Details of project costs

Items

Project costs (cost)

The authorized amount of implementation plan

Actual Payment

Amount of settlement

Survey Expenses

Actual Payment

00,000,000

0,000,000

Design cost

Actual Payment

00,000,000

Net construction costs

0,000,000,000

Compensations

Actual Payment

00,000,000

Other costs

Sub-committees

Actual Payment

0,000,000,000

00,000,000

Supervision fees

Actual Payment

00,000,000

General Management Expenses

Actual Payment

00,000,000

reclamation License Fees

Actual Payment

00,000,000

Reclaimed Land Appraisal Cost

Actual Payment

00,000,000

guidance.

0,000,000,000

Profit (10%)

00,000,000

Construction interest (7.6%)

0,000,000,000

Total System

0,000,000,000

Value-Added Tax (10%)

00,000,000

Total construction cost

00,000,000,000

0,000,000,000

11) Pursuant to the Public Waters Reclamation Act after the amendment, ○○ Fisheries obtained a license for reclamation of public waters with respect to ○○○○ dong, 000-0 adjacent to the reclaimed land of this case on June 10, 191, and obtained authorization for completion on April 2, 2001 after performing reclamation work from November 26, 191 to March 31, 2001. The amount and details of the project cost stated in the certificate of completion and the completed area are as follows.

o Total Project Costs: 00,000,000 won

o The completed area: 000,000 square meters in total;

- Acquisition of ○ fishing: 000,000 square meters

- State ownership: 00,000 square meters;

- Reclaimed land for public use: 00,000 square meters

o Details of project costs

Items

Project costs (cost)

The authorized amount of implementation plan

Actual Payment

Amount of settlement

Survey Expenses

Actual Payment

00,000,000

Design cost

0,000,000,000

00,000,000

Net construction costs

00,000,000,000

Compensations

Actual Payment

0,000,000,000

Other costs

Sub-committees

00,000,000,000

0,000,000,000

Supervision fees

00,000,000

General Management Expenses

0,000,000,000

Environmental Impact Assessment Costs

Actual Payment

0,000,000

reclamation License Fees

Actual Payment

00,000

Reclaimed Land Appraisal Cost

Actual Payment

00,000,000

Implementation Costs of Licensing Conditions

Actual Payment

0,000,000,000

Charges under Acts and subordinate statutes;

Actual Payment

0,000,000,000

value-added tax paid

Actual Payment

0,000,000,000

guidance.

00,000,000,000

Profit (10%)

0,000,000,000

Construction Interest

00,000,000,000

Total System

00,000,000,000

Value-Added Tax (10%)

0,000,000,000

Total Project Costs

00,000,000,000

12) The officially assessed individual land price in 2001 for the land of this case where the Plaintiff acquired ownership and the land where ○○○○○○ acquired ownership was KRW 00,000, and the officially assessed individual land price in 2001 for the land where ○○ Fishery acquired ownership is KRW 00,000.

[Ground of recognition] Facts without dispute, Gap evidence 0 through 00 (including provisional number; hereinafter the same shall apply), Eul evidence 0 to 0, and the purport of the whole pleadings

D. Determination

1) According to Articles 94 through 97, and 100 of the former Income Tax Act, gains on transfer of real estate shall be deducted from the transfer value, and the transfer value and acquisition value shall be determined based on the actual transaction value. However, pursuant to Article 114(7) of the same Act and Article 176-2(1) of the former Enforcement Decree of the Income Tax Act, where the actual transaction value of the relevant assets cannot be recognized or confirmed due to lack of books, sales contract, receipts, and other documentary evidence necessary to confirm the actual transaction value or lack of important parts, the tax authority may make a decision or rectification based on the conversion value, etc. Meanwhile, since the tax authority bears the burden of proof as to the transfer value as in this case, even if the actual transaction value cannot be confirmed due to lack of documentary evidence, the tax authority must, in principle, prove the actual transaction value which is the actual transaction value, and if the person liable for duty payment fails to prove it, it shall be presumed that the actual transaction value has no effect to determine the actual transaction value (see, e.g., Supreme Court Decision 98Du86.

2) In light of the following circumstances, it is reasonable to view that the project cost on the instant detailed statement cannot be deemed as the project cost actually incurred for reclamation work, and that the instant land constitutes a case where the actual transaction price cannot be confirmed at the time of acquisition. Therefore, the instant disposition should be revoked in an unlawful manner without further review of the Plaintiff’s remaining arguments.

① Article 14(1) of the Public Waters Reclamation Act provides that a reclamation licensee acquires the ownership of the rest of reclaimed land except for reclaimed land necessary for public or public use on the date the completion authorization was obtained, while the reclamation licensee amended by Act No. 3901 on December 31, 1986, provided that a reclamation licensee acquires the ownership of reclaimed land equivalent to the project cost (including net construction cost, investigation cost, compensation cost, and other expenses incurred in the relevant reclamation) required by the reclamation licensee at the time of application for the completion authorization, among reclaimed land except for reclaimed land necessary for public or public use on the date the completion authorization was obtained, that the reclamation licensee acquires the ownership of reclaimed land at his/her request at the time of application for the completion authorization; however, it is stipulated that the reclamation licensee was in accordance with the previous provision after the amendment in Article 14(3) of the Addenda of the Public Waters Reclamation Act.

According to this, on November 23, 1984, before December 31, 1986, the plaintiff, subject to Article 14 (1) of the Public Waters Reclamation Act prior to the amendment with a reclamation license, acquired the ownership of reclaimed land except for reclaimed land required for public or public use, regardless of the project cost required for reclamation, and there was no incentive to accurately state all project cost required for reclamation while submitting the instant detailed statement to the Busan Regional Maritime Affairs and Fisheries Office. On the other hand, after December 31, 1986, there was no incentive to accurately state the project cost required for reclamation. On the other hand, since ○○○ and ○○ fishery subject to Article 14 (1) of the Public Waters Reclamation Act after the amendment with a reclamation license obtained on June 10, 191, each of which was approved on December 31, 1986, the detailed statement of project cost required for reclamation was stated not only in the total project cost's detailed statement of completion approval but also in the total project cost's detailed statement of completion approval (00,000 won.

② In light of this point, the project cost indicated in the certificate of completion of reclamation of public waters and its detailed details are more reliable than the project cost indicated in the Plaintiff’s certificate of completion of reclamation of public waters, namely, the Plaintiff’s certificate of completion of reclamation of public waters. However, the instant statement does not include research expenses, general management expenses, reclamation license fees, reclaimed land appraisal expenses, construction funds interest, etc., which are commonly paid by the above two enterprises. In addition, it is highly likely that the aforementioned project cost was omitted in the instant statement. In addition, in calculating the actual acquisition price of the instant land, the Defendant calculated the actual acquisition price of the instant land, which is KRW 00,000,000, additional compensation expenses, which are KRW 00,000,000, additional compensation expenses, which are not specified in the instant statement. Accordingly, according to this, the Defendant also recognized that there was project cost not stated in the instant statement.

③ As the Plaintiff started reclamation work in the vicinity of the instant reclaimed land, the possibility that the Plaintiff would incur more construction cost than ○○○○○ or ○○○○○○○○○○○○ 2,000 square meters, such as piling up a 3-dimensional shape, in order to prevent leakage of reclaimed soil as alleged in the instant complaint. However, the Plaintiff’s construction cost per 0,000 square meters (i.e., KRW 00,000,000; hereinafter the same shall apply) is 00,000 square meters for each piece of land reclaimed by the Plaintiff, while the Plaintiff’s construction cost per 0,000 square meters for each 00,000 square meters for each 00,000 square meters for each 00,000 square meters for each 00,000 square meters for each 00,000 square meters for each 00,000 square meters for each 00,000 square meters for each 00,000 square meters for each land.

④ The Defendant asserts to the effect that construction cost on the instant detailed statement is similar to the Plaintiff’s construction cost as the construction cost per square meter per square meter, calculated on the basis of the total project cost indicated in the certificate of completion of reclamation of public waters, in the case of a corporation specializing in reclamation work at the same time as the Plaintiff. However, the construction cost on the instant detailed statement is considerably determined by the location, size, depth, and tidal currents, etc. of reclamation. However, the construction cost on the instant detailed statement may not be compared solely on the ground that the construction cost on the site of reclamation conducted by the said company is similar to the Plaintiff’s reclaimed land, in a situation where it is not clearly known that the site of reclamation conducted by the said company is similar to that of the Plaintiff’s reclaimed land. In addition, since the above company obtained a reclamation license before the Public Waters Reclamation Act enters into force after its amendment (in the case of a corporation specializing in 00,000 or 000,000 won, the total construction cost on April 28, 1981).

⑤ The project cost on the instant statement and the amount reported by the Plaintiff at the time of filing a return on acquisition tax is similar. However, in principle, acquisition tax is based on the value reported by the acquisitor as at the time of acquisition [Article 111(1) and (2) of the former Local Tax Act (wholly amended by Act No. 1021, Mar. 31, 2010)]. Since the Plaintiff appears to have reported acquisition tax based on the evidence remaining until the time of filing a return on acquisition tax, it is natural that its contents are similar to the instant statement. In addition, in calculating transfer income at the time of the Plaintiff’s acquisition of ownership of the instant land, it is reasonable to view that the transfer value and acquisition value are the standard market price in principle [Article 96(1) and Article 97(1)1 of the former Income Tax Act (wholly amended by Act No. 7837, Dec. 31, 2005)]; the Plaintiff as the Plaintiff did not have any special motive to accurately grasp the actual acquisition value of the instant land or keep it.

(6) The Defendant asserts to the effect that the burden of proof regarding the actual acquisition price of the instant land was transferred to the Plaintiff in the instant case, upon presenting the instant case based on the Seoul High Court Decision 2013Nu1156, 2014Nu4038. However, as seen earlier, insofar as the credibility of the instant specifications is not high, it cannot be deemed that the Defendant had proven considerable circumstances that can be seen as the actual transaction price, and thus, the burden of proof regarding the actual acquisition price of the instant land cannot be said to have been converted to the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

심급 사건

서울행정법원 2015.01.09.선고 2014구합60498

-서울고등법원 2016.01.21.선고 2015누33693

-대법원 2016.06.10.선고 2016두34356

참조조문

-공유수면매립법

-공유수면매립법 제14조 제1항

-국세기본법 제81조의4 제2항

-국세기본법 제81조의4 제2항 제1호

-소득세법