National Tax Service Review and Transfer 2010-0322 ( October 25, 2011)

Since it is merely a simple exchange and cannot confirm the actual transfer value, the calculation of transfer margin is legitimate based on the standard market price.

In light of the details and contents of the conclusion of an exchange contract, it constitutes a case where the actual transfer value is not verifiable because it is merely a simple exchange, and there is no transaction example or no adequate appraisal value, the transfer value shall not be based on the standard market price and in this case, the acquisition value shall be based on the

Article 114 of the Income Tax Act

2011Guhap5903 Revocation of Disposition of Imposing capital gains tax

LAA

Head of Sungnam Tax Office

July 19, 2012

August 16, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of KRW 000 of the transfer income tax for the year 2009 against the Plaintiff on August 10, 2010 (any clerical error in September 30, 2009 stated in the written complaint is apparent) shall be revoked.

1. Details of the disposition;

가. 원고는 2009. 5. 8. 김BB과 사이에， 원고 소유의 동두천시 OO동 000 대 1，628㎡ 및 그 지상 'AAA궁전' 모텔 건물(이하 '이 사건 1 부동산'이라고 한다)과 김BB 소유의 남양주시 진접읍 OO리 000 답 383㎡， 같은 리 000 답 998㎡， 같은 리 000 답 1，002㎡， 같은 리 산000 임야 2，312㎡(이하 '이 사건 2 부동산'이라고 한 다)를 교환하기로 하는 계약을 체결하였는데(이하 '이 사건 교환계약'이라고 한다)， 그 교환계약서의 특약사항에는 '세무신고 및 등기는 매매로 한다(원고의 물건은 000원， 김BB의 물건은 000원으로 신고한다)'라고 기재되어 있다.

B. On May 15, 2009, the Plaintiff and KimB entered into an overall contract on the instant real estate transfer and takeover in accordance with the above exchange contract, and the contract state that the Plaintiff sells the instant one real estate to KimB in 000 won, and that in relation to the payment of the price, KimB succeeds to KRW 000 of the loan on the instant one real estate and pays the remainder.

C. On May 14, 2009, the Plaintiff filed a lawsuit against KimB seeking the ownership transfer registration against KimB on the wind arising from the implementation of the ownership transfer registration with respect to the instant real estate 2, but the Plaintiff completed the registration of ownership transfer with respect to the instant two real estate on July 7, 201, upon winning the judgment in favor of the said court on November 26, 201, pursuant to the above judgment, on the wind arising from KimB and dispute.

D. On July 2009, the Plaintiff reported the transfer value of the instant real estate 1 to the Defendant at the end of the period of KRW 000, and the acquisition value at KRW 000, and the tax base at KRW 000, and paid the transfer income tax accordingly.

E. On August 10, 2010, the Defendant: (a) deemed that the real transfer value of the instant 1 real estate is unclear; (b) calculated the transfer value at KRW 000, and the acquisition value at KRW 000 according to the standard market price pursuant to Article 176-2(3)4 of the Enforcement Decree of the Income Tax Act; and (c) imposed KRW 000,000,000,000,000,000,000,000,000,000,000.

F. On January 5, 2010, the Plaintiff filed a request for review of the instant disposition with the National Tax Service, and the Commissioner of the National Tax Service dismissed it on February 25, 201.

[Reasons for Recognition] The facts without dispute, Gap evidence 4, 5, 12, and Eul evidence 1 through 5 (if available, including natural disaster, hereinafter the same shall apply), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

① At the time of the conclusion of the instant exchange contract, the real estate value of the instant one is KRW 000,000 when the mortgage was established on the real estate amounting to KRW 00,00, and the said mortgage obligation is acquired by KimB, and the exchange contract was concluded by evaluating the instant two real estate as KRW 00,00, and the transfer income tax on the instant one real estate should be calculated based on the actual transaction value, and the transfer income tax on the instant one real estate should be calculated as KRW

(2) In this case, it does not meet the requirements for estimation determination under Article 176-2 (1) of the Enforcement Decree of the Income Tax Act, and even if corresponding thereto, it is necessary to calculate the transfer income tax by deeming the transfer value and the acquisition value to be 000 won, which is the market price at the time of the time of appraised by requesting it to a reliable appraisal institution

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) Whether the purchase price stipulated in the instant exchange contract is the actual transaction price

(A) The actual transfer value of the relevant asset, which serves as the basis for calculating the amount of capital gains tax, refers to the value that the transferor transfers the asset at the time of the transaction and received as the consideration, which is objectively recognized by the sales contract or other documentary evidence. In other cases, where the transaction is conducted, it shall be a value exchange based on the monetary value of the object, and in particular, it shall be a value exchange based on the market value of the object of exchange, accompanied by the procedure for settlement of the difference in the appraised value. However, in the case of a simple exchange, the actual transfer value shall be confirmed, but in other cases, the actual transfer value shall not be confirmed (see, e.g., Supreme Court Decisions 94Nu6840, Dec. 9, 1994; 96Nu860, Feb. 11, 1997; 98Du19841, Nov. 26, 199; 203Du14123, Mar. 26, 2004).

(B) According to the above facts, the plaintiff and KimB did not undergo procedures such as market price appraisal while exchanging each of the real estate of this case, and the plaintiff and KimB decided the value of the real estate of this case at will between the parties, and the value of the two real estate of this case at 00 won, and KimB decided the difference at 00 won, and KimB decided the value of the two real estate of this case at 00 won, and it is reasonable to estimate the transfer value under Article 114 (7) of the Income Tax Act and Article 17-2 (3) of the Enforcement Decree of the same Act in calculating the transfer income tax of this case for the real estate of this case. In light of the circumstances and contents of the conclusion of the exchange contract, the exchange of this case is merely merely an exchange, so it cannot be viewed as a case where the actual transfer value can be confirmed. Therefore, there is no data to verify the actual transfer value, and in calculating the transfer income tax for the real estate of this case, the transfer value and acquisition value should be estimated under Article 1114 (7) of the Enforcement Decree.

(2) Method of estimating the estimated amount of capital gains tax on real estate of this case

(A) According to the provisions of Article 114(7) of the Income Tax Act and Article 176-2(3) of the Enforcement Decree of the same Act, where it is impossible to recognize or confirm the actual transaction price at the time of the transfer or acquisition of the relevant asset, and where there are cases of trading assets having the identity or similarity of the relevant asset within 3 months before or after the date of the transfer or acquisition, the value thereof, and where there are appraisal values recognized as reliable (limited to those whose appraisal base date is less than 3 months before or after the date of the transfer or acquisition, respectively) assessed by 2 or more appraisal corporations on the relevant asset within 3 months after the date of the transfer or acquisition, the transfer income tax shall be estimated according to the order of the standard market price, calculated by applying the provisions of paragraph (2), and the value calculated by applying

(B) The plaintiff alleged to the effect that the appraisal value of the above (2) includes the market price appraisal result of the appraiser LeeF of this court concerning the real estate in this case, but each subparagraph of Article 176-2 (3) of the Income Tax Act provides that the price applied in the case where it is impossible to recognize or confirm the actual transaction price at the time of transfer or acquisition of the pertinent real estate shall be limited to the applicable value, and as alleged by the plaintiff, the tax authority should rectify the transfer income tax according to the appraisal result so long as the appraisal value is not consistent with the transfer value recognized by the tax authority, so the tax authority must rectify the transfer income tax, and the appraisal value which can be the basis for the determination of the estimation under the above Enforcement Decree shall be limited to the appraisal value which is assessed by more than two appraisal corporations within three months before and after the date of transfer or acquisition, and the plaintiff's assertion contrary to this is not acceptable.

(C) Therefore, inasmuch as there is no business example or adequate appraisal value with respect to the real estate of this case, the transfer value is bound to be based on the standard market price, and such transfer value is calculated by applying the standard market price, the acquisition value shall also be based on the standard market price, and the disposition of this case calculated on the basis of the transfer value and acquisition value calculated by the same method is lawful.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

shall be ruled.