Suwon District Court 2010Guhap17046 (27 April 2012)

early 2010 Heavy223 (Law No. 10, 2010)

The transfer value under the sales contract submitted by the purchaser of real estate shall be deemed the actual transaction value.

It is reasonable to see that a sales contract submitted by a real estate purchaser at the time of transferring real estate to a third party is a contract prepared in a genuine manner with the purchaser through an agent. Since an act of falsely preparing a transportation contract and filing a transfer income tax report is fraudulent or other unlawful act, ten years of exclusion period should be applied.

Article 96 of the Income Tax Act

Article 26-2 of the National Tax Basic Act

2011Nu31088 Revocation of Disposition of Imposing capital gains tax

IsaA

Head of Central Tax Office

Suwon District Court Decision 2010Guhap17046 Decided August 11, 2011

March 23, 2012

April 27, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s imposition of capital gains tax of KRW 000 on December 1, 2009 against the Plaintiff on December 1, 2009 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On July 19, 200, the Plaintiff acquired and possessed a building of 1,217.97 square meters (hereinafter referred to as "the instant building") in the auction procedure for real estate rent, and transferred it to YCC and MadDD (hereinafter referred to as "YCC, etc.") on July 16, 2001, when it acquired and owned a building of 00 won in the auction procedure for real estate rent, from 000 OOdong, 00-00 to 294.1 square meters in its place, 6 stories above ground (n) and 5 stories above ground (hereinafter referred to as "the instant building").

B. On May 31, 2002, the Plaintiff filed a final return on tax base of capital gains tax to the effect that the transfer value of the instant real estate is KRW 000,000, and that there is no capital gains tax to pay such acquisition value as KRW 000.

C. On September 2005, the director of the Seocho District Tax Office, as a result of re-audit of the details of the transfer income tax on the Plaintiff, deemed that the Plaintiff omitted tax by reporting the transfer value at a lower price than the actual transfer value of the instant real estate, and calculated the transfer income tax by recognizing the actual acquisition value as KRW 000,000, the successful bid price, and the necessary expenses as KRW 00,000, respectively, and notified the Plaintiff on October 6, 2005, that the Plaintiff corrected and notified the transfer income tax of KRW 00,000, the transfer income tax for the year 2001 (hereinafter “pre-sale disposition”), and the Plaintiff paid all the transfer income tax notified at that time.

D. After that, on March 15, 2006, the YellowCC transferred the instant real estate to a third party and reported the acquisition value of the instant real estate to 000 won on May 25, 2007. The Defendant determined capital gains tax by deeming that the actual value of the instant real estate transferred to YellowCC, etc. was KRW 000, and notified the Plaintiff on December 1, 2009, of KRW 000 for capital gains tax belonging to the year 2001 (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition filed a petition for adjudication with the Tax Tribunal on June 28, 2010, but the petition for adjudication was dismissed on September 10, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1-1 to 3, Gap evidence 4, 8, Eul evidence 1-1, 2, Eul evidence 2, 3, 5, 6, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The amount of accrued income

The reason why the difference between the amount determined as the actual transfer value and the transfer value recognized by the Plaintiff as the actual transfer value at the time of the preceding disposition is attributable to KimT, who had been requested by the Plaintiff to sell the instant real estate, to transfer the house and equipment, etc. purchased and installed in the course of leasing and operating the instant building with the instant real estate to YellowCC, etc. along with the instant real estate. The disposal of the instant real estate is unlawful on the premise that the full amount of the price stated in the instant contract falls under the sale price of the instant real estate, not by distinguishing the purchase price of the instant real estate by the item, but by dividing the total amount of KRW 00 and KRW 000,000, such as the house and equipment, and the sale price of the instant real estate, which entered as if the amount was the purchase price of the instant real estate in convenience.

2) The purpose of the exclusion period of taxation is

Since the transfer value stated in the contract of this case, which is the contract stating the actual transfer value of the real estate of this case, includes 000 won of the price of the house, equipment, etc. which is not subject to the transfer income tax, such amount shall not be included in the transfer value of the real estate of this case, and it shall not be deemed as "the case of evading, refunding, or deducting national taxes through fraudulent or other unlawful acts" under Article 26-2 (1) 1 of the Framework Act on National Taxes, and therefore, the exclusion period of taxation under Article 26-2 (1) 3 of the above provision shall be applied for the five-year period not exceeding 10 years. Thus, the disposition of this case was made after

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Whether the instant contract constitutes a false contract

In light of the following circumstances, it is reasonable to see that the contract of this case is a contract in which the plaintiff actually prepared with YellowCC, etc. through Kim T-T, a representative of the plaintiff, and some of the testimonys in Gap's evidence Nos. 2, 3, 7, Eul evidence Nos. 4, 7, and 8, Eul evidence Nos. 9 and 11, and some of Gap evidence Nos. 9 and 11, and the testimonys in the court of first instance Kim T-T and KimU, which are contrary to the above evidence, are not sufficient to believe it is, and there is no other evidence to reverse the above recognition.

A) Since subparagraph 2 (Real Estate Sales Contract) is a false sales contract (one prestigious contract) prepared by the Plaintiff in collusion in order to reduce capital gains tax, according to the Plaintiff’s assertion, there is no contract prepared by the Plaintiff in the course of selling the instant real estate to YellowCC, etc., and in light of the fact that the value of the instant real estate is high, and the method of paying the purchase price is a method of succeeding to the obligation to repay the loan and the obligation to return the lease deposit, it is difficult to easily obtain the Plaintiff’

B) In light of the fact that the Plaintiff’s acquisition of the instant real estate through auction was based on the recommendation of KimT, the Plaintiff’s head, KimT, the KimT, the fact that KimT leased the instant real estate and managed the tenants, the Plaintiff merely requested KimT to sell the instant real estate and appears not to have been involved in the instant real estate sales, and that the purchaser, such as YellowCC, was aware that he was entitled to represent the sale of the instant real estate and was actually paid KRW 00,00,00,000, which is the remainder of money other than the debt succeeded to by YellowCC, to KimT, it is reasonable to deem that the Plaintiff was comprehensively delegated the authority to sell the instant real estate to KimT or granted the power to represent the instant real estate sales.

C) The Plaintiff argued to the effect that, as yellowCC et al. thought to obtain an additional loan from the bank with the instant real estate as collateral, it would have increased the value of the collateral, the Plaintiff prepared a sales contract as if the purchase price of the instant real estate was 00 won and the transfer price of the said house and fixtures was the purchase price of the instant real estate, and Kim TT prepared and executed the instant contract without the Plaintiff’s permission. However, it would be reasonable to calculate the loanable amount after evaluating the value of the collateral through an objective method such as appraisal and assessment. In light of the fact that calculating the loanable amount after assessing the value of the collateral through an objective method such as appraisal and assessment, it is a usual financial institution’s loan loan method. The maximum debt amount of the right to collateral security under the name of the purchaser established after the purchase of the instant real estate is 00 won equal to the maximum debt amount of the right to collateral security established in the name of the Plaintiff (which seems to be equal to the amount of the loan).

D) The instant contract explicitly states the method of payment, etc. of the purchase price as the special terms and conditions, and in fact, KRW 000 and KRW 500 and KRW 000, VV, and WW lease deposit according to the said payment method are succeeded by YellowCC, etc., and the remainder 00 won was paid directly to KimT as a check before itself.

E) On the recommendation of the investigative agency, etc. to purchase the instant real estate from the her husband, Kim TT, a husband, and operate the inn, and stated that the instant real estate was purchased at KRW 000,00, which is the Plaintiff’s agent, Kim TT and the principal, her husband, and DonD, a Sinn Don Don, decided to purchase the instant real estate at KRW 00,00, and prepared the instant contract.

F) YellowCC, etc. transferred the instant real estate to a third party, and even if the Plaintiff reported the acquisition value of the instant real estate to KRW 000, as claimed by the Plaintiff, it cannot be deemed that there is no disadvantage in capital gains tax, etc. and no benefit arises on the ground that it reported the acquisition value of the instant real estate to KRW 000. However, YellowCC reported the acquisition value of the instant real estate to the tax authorities, and submitted the instant contract to the tax authorities.

(ii)the amount of accrued income;

According to Article 96 (1) 4 of the former Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), where real estate is transferred within one year after its acquisition, the transfer value, which serves as the basis for calculating capital gains tax, shall be based on the actual transaction value, which is the actual transaction value between the transferor and the transferee. In addition, as long as the authenticity of disposal documents is recognized, the court must recognize the existence and content of the declaration of intent as the content of the contract, unless there is any clear and acceptable counter-proof that denies the contents of the contract, unless it is evident and acceptable (see, e.g., Supreme Court Decision 2006Da67602, 67619, Jul. 9, 2009). Since the contract is a contract which is completely written between YellowCC, etc. through Kim T, an agent, and thus, its authenticity has already been recognized, on the other hand, it is difficult to see that the Plaintiff’s assertion that part of the contract was contrary to the actual transaction value evidence No. 50.

3) The purpose of the exclusion period of taxation is

According to Article 26-2(1)1 and 3 of the former Framework Act on National Taxes (amended by Act No. 911, Jan. 1, 2010; hereinafter the same), national taxes may not be imposed after the expiration of a five-year period from the date on which national taxes can be imposed. However, in cases where a taxpayer evades national taxes by fraudulent or other unlawful means, national taxes may be imposed for ten years. "Fraud or other unlawful acts" refers to deceptive or other active acts that make it impossible or considerably difficult to impose and collect taxes. However, the following circumstances revealed as seen earlier, namely, the Plaintiff’s disposal of Real Estate No. 2 (Real Estate Sales Contract), which is a one-time multi-party contract, conspired to reduce capital gains tax, was made by making a false final return of capital gains tax return. In light of the above circumstances, the contract of this case is a contract where the Plaintiff is an agent Kim T-T, which is a legal agent, and the Plaintiff’s act of not reporting the transfer amount as stated in the contract of this case to other real estate No. 160-years.21.

3. Conclusion

If so, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is this.

As the conclusion is inappropriate, it is revoked, and the plaintiff's claim is dismissed. It is so ordered as per Disposition.

The decision shall be rendered as above.