Daegu District Court 2017Guhap20820 (No. 16, 2018)

The disposition of this case is unlawful in light of the agreement related to this case, the confirmation of transaction, appraisal value, etc.

The Plaintiff’s assertion is supported due to the fact that the transaction value claimed by the Plaintiff is reduced credibility in the statement of BB by the purchaser of the instant real estate and the machinery and equipment, and that the transfer cost of the machinery and equipment is significant. As such, the disposition of this case is unlawful, since the Plaintiff’s assertion is supported by the fact that the transfer cost of the machinery and equipment is large.

Article 96 of the Income Tax Act

2018Nu3357 Revocation of Disposition of Imposing capital gains tax

AA

○○ Head of Tax Office et al.

Daegu District Court Decision 2017Guhap20820 Decided May 16, 2018

October 19, 2018

November 9, 2018

1. The part of the judgment of the court of first instance against the Defendants shall be revoked.

2. Transfer income tax attributed to the Plaintiff on August 1, 2016 by the head of ○○○ Tax Office, which belongs to the Plaintiff in 2009.

The imposition of ○○○○○○○○ and the imposition of ○○○○○○○○ Head of the tax office on August 1, 2016 against the Plaintiff.

In 2009, the imposition of value-added tax ○○○○○○○○○ shall be revoked.

3. All costs of the lawsuit are borne by the Defendants.

The same shall apply to the order.

1. Details of the disposition;

A. From February 19, 2004 to May 18, 2009, the Plaintiff is an individual entrepreneur who has been engaged in food maintenance manufacturing business under the trade name of ○○○○○○○○ (hereinafter “○○○”) from February 19, 2004 to ○○○○○○ (hereinafter “○○○”).

B. On March 3, 2004, the Plaintiff purchased and acquired the real estate listed in the attached Table 1 list (○○○○○○-○ factory site and its ground factory building; hereinafter referred to as “the instant real estate”) and its accessory machinery and equipment (DHA, EPA, smuggling oil, and Oraco games plant) at the price of KRW 00 million.

C. On April 23, 2009, the Plaintiff transferred the instant real estate and its accessory machinery and equipment to BB, and then reported and paid the transfer value to the head of Defendant ○○○○ Tax Office as KRW 000,000,000 and KRW 00,000,000 for the transfer income tax for the year 2009. In addition, the Plaintiff issued to BB a tax invoice for the supply value of the instant real estate and a tax invoice for the supply value of the attached machinery and equipment at KRW 00,000,000 for each of the supply value of the instant real estate and accordingly, reported and paid to the head of Defendant ○○ Tax Office for the first time in 2

D. BB on August 14, 2013, ○○○ Cooperative: (a) the instant real estate was sold to ○○○ Cooperative ○○○○○○○○○○ billion.

BB transferred the Plaintiff’s transfer income tax to Defendant ○○○ Head of the tax office.

Unlike the above, the acquisition value of the instant real estate was calculated as the ○○○○○○○○○○○○○, and reported and paid the transfer income tax.

E. From May 23, 2016 to June 10, 2016, Defendant ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ (hereinafter “○○○○○○○○○”). As a result, even if the Plaintiff transferred the instant real property to BB,

F. Accordingly, on August 1, 2016, Defendant ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ was notified of the Plaintiff’s decision to revise the transfer income tax for the year 2009.

G. In addition, Defendant ○○○ Head of the tax office is assessed and assessed pursuant to Article 61 of the Inheritance Tax and Gift Tax Act as shown above, when the Plaintiff supplied BB with factory buildings and accessory machinery and equipment among the instant real estate.

It judged that the value-added tax base calculated proportionally was under-reported to ○○○○○○○○, and notified the results of the above on-site investigation to Defendant ○○○○ Director.

H. Accordingly, on August 1, 2016, Defendant ○○○○○○○○○○○○○○○○○○, the Plaintiff’s first-year value added tax in 2009 was determined as ○○○○○○○○○○○○○○○○○○○, and notified the Plaintiff on August 1, 2016, that the Plaintiff would pay the said tax amount after subtracting the already paid tax amount from ○○○○○○○○○○○○○○○○○○.

(i) On October 28, 2016, the Plaintiff filed a request for a trial with the Tax Tribunal on the grounds that it was dissatisfied with each of the instant dispositions, but the said request was dismissed on December 27, 2016.

Facts that there is no dispute over recognition, Gap Nos. 1, 2, 3, 9, 14 (including virtual numbers; hereinafter the same shall apply), Eul

Each entry of evidence Nos. 1, 2, and 3 and the purport of the whole pleadings;

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

On April 23, 2009, the Plaintiff transferred the instant real estate and its accessory machinery and equipment to BB in the price of KRW 000,000,000,000, and at the same time transferred the ○○○○-○○, Inc. (hereinafter referred to as “○○,”).

However, in order for BB to obtain a bank loan to the Plaintiff as collateral, the double contract was requested by BB to cover the purchase price. Accordingly, the Plaintiff prepared to BB the purchase price of the instant real estate with KRW 00 billion, and the purchase price of the accessory machinery and equipment as KRW 00 million with the false contract for the two copies of the sales contract. As such, BB filed a false contract with Defendant ○○○○ Tax Office, thereby filing a false report on the transfer income tax on the instant real estate with Defendant ○○ Tax Office. Accordingly, each of the instant dispositions was made by Defendant ○○○ Tax Office and the head of ○○ Tax Office based on the false report by BB, and thus, should be revoked as it is unlawful because the transfer price of the instant real estate and the supply price of the factory building were calculated by erroneous calculation.

B. Relevant statutes

Attached Form 2 shall be as shown in attached Table 2.

C. Determination

1) Facts of recognition

A) On January 24, 2005, ○○○○○○○○○○○○○○○○○○○-Umm2, which is directly connected to the instant real estate in the process of voluntary auction of real estate, purchased and acquired the price of the relevant ○○○○○○○○○○○○○○ site, and the relevant ground-based factory building, and the machinery and equipment (such as oil refining equipment and refining equipment). The appraisal price of the entire machinery and equipment assessed in the instant auction procedure is ○○○○○○ (the total appraisal price of the land, buildings, and machinery and equipment is ○○○○○○○), among which the appraisal price of the oil refining plant facilities was ○○○○○○○○, and the appraisal price of the oil refining plant facilities was ○○○○○○○○.

B) On April 28, 2008, the Plaintiff and CCC drafted a written agreement (a provisional agreement) with regard to the sale and purchase of the instant real estate and the instant machinery and equipment owned by ○○○○-○ factory (ju) as follows.

C) After the above provisional contract, CCC waived the above contract due to the lack of funding circumstances, and DD (the person who tried to purchase the instant real estate and machinery and equipment together withCCC) introduced BB to the Plaintiff as a new purchaser. Accordingly, the sales contract between the Plaintiff and BB on the instant real estate and its accessory machinery and equipment was concluded between the Plaintiff and BB.

D) The Plaintiff and BB drafted a total of five contracts with respect to the sale and purchase of the instant real estate and its accessory machinery and equipment. The main contents of each sales contract are as listed below [Attachment 2].

E) BB paid to the Plaintiff totaling KRW 00 billion from February 18, 2009 to November 2009. The specific payment details are as follows.

F) On April 23, 2009, BB obtained the instant real estate and its accessory machinery and equipment from the Plaintiff, and obtained a loan from the Plaintiff at ○○○○○○ Branch on the same day in order to prepare the purchase price. At the time, the Plaintiff submitted to ○○ Bank a sales contract (Evidence 3-3) stating the purchase price of the instant real estate as KRW 00 billion with the loan application document. At the time, the appraisal price of the instant real estate was assessed as KRW 00 won at the request of ○○○○○○○○ for the said loan (date of time: February 23, 2009). The appraisal price of the instant real estate was assessed as KRW 00, the appraisal price of the initial plant facilities in the instant real estate, and the appraisal price of the oil plant facilities in the instant real estate was assessed as KRW 000,000, respectively.

G) In the course of the tax investigation, Defendant ○○○○○○○○○○○○○, etc., Defendant BB asked the Plaintiff about financial transaction information regarding the check payment out of the amount paid as the purchase price. However, the lower endorser of the check is EE, FF, GG, HH, and III.

H) On August 1, 2013, BB sold the instant real estate to ○○○○○○○○○○○ billion (factory building: ○○○○○○○0,000,000 won for factory site, and factory site: ○○○0,000,000 won for factory site).

Accordingly, while reporting the transfer income tax to Defendant ○○○○○ Head of the tax office, BB filed a sales contract stating the sales amount of the instant real estate as KRW 00 billion (in the case of No. 2, No. 2, No. 2) and all the sales amount of the horse production facilities installed on the instant real estate as KRW 00 billion (in the case of No. 2, No. 2, No. 2).

I) The value assessed as of the transfer date of 2009 pursuant to Article 166 of the Enforcement Decree of the Income Tax Act and Article 61 of the Inheritance Tax and Gift Tax Act on the instant real estate and machinery and equipment of the Republic of Korea is as follows.

Facts that there is no dispute over recognition, Gap 3, 4, 5, 9, Eul 1, 2, 3, 5, 7, 9, 10, and Eul 1, 2, 3, 5, 7, 9, and 10, and the first instance court's response to each order to submit financial transaction information to ○○ Bank, ○○ Bank, and ○○ Bank, the purport of the whole pleadings.

2) As to the transfer value of the instant real estate

In the course of the tax investigation, the Defendant determined that the transfer value of the instant real estate was KRW 00 billion based on the BB’s statement that the purchase price of the instant real estate was KRW 00 billion and the sales contract (No. 2-2) that was submitted by the Defendant. On the other hand, the Plaintiff was prepared for a loan in a false manner. On the other hand, the Plaintiff was prepared for the instant real estate and its accessory machinery and equipment (the first ○○○-○ factory).

A sales contract (No. 9) stating the price for the instant real estate and its accessory machinery and equipment as KRW 000,000,000. Therefore, the issue of this case is whether any of the above two sales contracts constitutes a real sales contract concerning the instant real estate and its accessory machinery and equipment. In full view of the following circumstances, it is reasonable to view that the sales contract (No. 9) stating the price for the instant real estate and its accessory machinery and equipment as KRW 00,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,

① From April 2008, the Plaintiff was engaged in the transaction with CCC and the instant real estate and machinery and equipment, and entered into a sales contract with BB through the introduction of DD in order to have a contract not concluded due to CCC’s financial condition. However, at the time of the process of the sales contract with CCC, the price of the instant real estate was set at KRW 00 million, which is the ownership of ○ billion won, and extraction and crushing facilities (refrative plant facilities). This is supported by the written agreement (Evidence 5), written by CCC’s testimony and confirmation of the fact of the transaction (Evidence 8).

② BB and DD, on April 22, 2009, prepared each of the following descriptions (Evidence A7) and ordered the Plaintiff.

BB The phrase “AB succeeds to the matters set forth in the above separate contract in the first instance court as CCCC.” At the time, it shall be deemed that CCC succeeds to the matters set forth in the above separate contract. At the time, it shall be ○ billion won, and all machinery and equipment of the instant real estate.

The Plaintiff and CCC testified that the terms and conditions of the contract between the Plaintiff and CCC were to be succeeded to. However, as seen earlier, both the Plaintiff and CCC stated that the price of the instant real estate was set at KRW 00 million, and that the price of the machinery and equipment owned by ○○, Inc. was set at KRW 00 million. In particular, each of the above specifications is significant.

At the time of the conclusion of the contract with B, DDR testified that the price for the instant real estate was set up by CCC (Evidence No. 5), namely, that the price for the machinery and equipment owned by CCC, which is a separate document, was set up by BB, and that the price for the instant real estate was set by BB. As such, it is difficult to readily understand that the Plaintiff, who purchased and sold the machinery and equipment owned by CCC and the instant real estate, was set by KRW 80 million and KRW 00 million and KRW 100 million when concluding the contract with BB, determined the price for the machinery and equipment owned by ○ billion and KRW 00 million.

③ A sales contract (a sales contract stating the price of the instant real estate as KRW 00 billion, and a sales contract stating the price of machinery and equipment as KRW 00 million, in which BB claims that the price of the instant real estate is the true sales contract.

The date of preparation is January 7, 2009. However, BB on the same day prepared a written confirmation (Evidence A No. 11) as follows and provided to the Plaintiff.

BB asserted that “three copies of this confirmation form” means the sale and purchase price of KRW 00 billion (Ga evidence 3-2) in the sales and purchase contract (Ga evidence 3-2) prepared for bank loans. However, in order to obtain bank loans, preparing three copies of the sales and purchase contract for the seller, buyer, and licensed real estate agent, while preparing three copies of the sales and purchase contract for the purpose of obtaining bank loans, is an example of preparing three copies of the sales and purchase contract. The contents of the above confirmation form also.

As shown, three copies of a sales contract to be discarded after a bank loan application is filed shall be prepared.

There is no reason to view that the “three copies of the “contract” written in the above written confirmation refers to the two copies of the contract, which BB asserts as a genuine contract, and the sales contract which is written in the amount of KRW 00 million.

④ On April 23, 2009, BB remitted KRW 00 million to the Plaintiff’s account. Of these, the Plaintiff returned KRW 00,000 to BB again. As such, the Plaintiff’s return of KRW 00,000,000,000, which is the Plaintiff’s ownership, of the instant real estate (including the cost for machinery and equipment owned by the Plaintiff on the instant real estate), to 00,000,000 won. BB testified that ○○○○○○ was returned to the Plaintiff at the first instance court on the grounds that ○○○○○○○○○○○○○○○○○○ was in mercion, and that ○○○○○○○○○○○○○○○○○○○○○○○○○○ KRW 9,000,000,000 won. However, according to ○○○○○’s cashier’s cashier’s account, it was difficult to immediately withdraw KRW 15,1309,1000.

⑤ According to the appraisal report drawn up at the request of the ○○ Bank, the appraised value of the instant real estate at the time of the price on February 23, 2009 is KRW 00 billion, which is the purchase price of the instant real estate claimed by the Plaintiff. However, the appraised value of the instant real estate is somewhat different from that of the Plaintiff’s KRW 00 million. However, the appraised value of the machinery and equipment installed on the instant real estate, which is owned by BB, was set up on the instant real estate, as ○○○○○○, and owned by the instant real estate, and was installed on the instant real estate, and owned by the Plaintiff as well as the oil plant installed on the first ○○○-○ factory, which was installed on the instant real estate from the original date to the Plaintiff’s ownership).

④ The appraisal value of the instant real estate assessed at the time of the price on February 23, 2009 at the ○○○○○○○○○○○○○○○○○. The appraisal value of the instant real estate, which was assessed at the time of the price on February 23, 2009, is the total of KRW 00 billion. The appraisal value of the instant real estate and its accessory machinery and equipment, and oil plant equipment, etc. is the total of KRW 00 billion. The purchase price of the instant real estate and its accessory machinery and equipment, etc. is the total of KRW 00 billion. The amount equivalent to KRW 00,000,000, which is the appraised value of the instant real estate, equivalent to KRW 00,000,000,000,000,000,000,000 won, which is the appraised value of machinery and equipment, which is claimed by the Plaintiff, while there is no big difference between KRW 20,000,00.

7) At the request of CCC on May 2008, J suspended the work due to the transfer of oil plant facilities installed in ○○○○-○ factory from around May 2008 to the real estate of this case, while the sale and purchase between the Plaintiff and CCC took place, and subsequently, the Plaintiff and BB entered into a sales contract, and completed the work on January 20, 2009. BB paid KRW 00,000 in consideration of the aforementioned relocation and installation work to JJ on January 20, 209. If ○○○○○-○○○○○-○○ factory, as alleged in BB, all of the prices of the installation installed in ○○○○○○○○-○ factory installed in the instant real estate, and all of the installation costs of the installation were 0 billion won, compared to the book value of the installation of the instant real estate of this case, the value of the installation installed in ○○-○○-○ factory and the book value of the installation of the instant 200 billion won.

When calculating the value, it shall be ○○○○.

In order to move machinery and equipment having the value of ○○○○ Won, ○○○

Many members are too large.

8) If the Plaintiff transferred the milk plant facilities to BB at KRW 000 million, the Defendant: (a) the transfer value shall be recorded in the owner’s ○○○○○○○○○○○, and the corporate account book; (b) the transfer value of the instant real estate was not reported that the disposal of fixed assets, such as milk plant facilities, was ○○ billion upon filing a corporate tax return; and (c) the transfer value of the instant real estate is one of the grounds for the fact that the instant real estate was ○○ billion won. However, the foregoing circumstances are irrelevant to the time of the transfer value of the instant real estate or the transfer value of the oil plant facilities. If the transfer value of the oil plant is sold between the two, the transfer value shall be entered in the ○○○ milk business, and the corporate account book shall also be the transfer value of fixed assets at the time of filing a corporate tax return, and thus, the fact that the fixed assets were disposed of cannot be the grounds for the transfer value of the instant real estate or the instant plant facilities.

3) Sub-decisions

Therefore, each of the dispositions of this case, which the Plaintiff decided the tax base and tax amount of the transfer income tax of this case, value-added tax of this case on the premise that the Plaintiff transferred all of the machinery and equipment to BB to ○○ billion won, should be revoked in an unlawful manner.

3. Conclusion

Thus, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and since the judgment of the court of first instance differs from this conclusion, the part against the defendants in the judgment of first instance which accepted the plaintiff's appeal and accepted

The cancellation of each disposition of this case shall be revoked, and it is so decided as per Disposition.