The early high-2012-Seoul Office-3106

Transfer to a person with a special relationship at a price lower than the market price to be subject to wrongful calculation.

It shall be deemed that land is transferred to a person with a special relationship with the company at a price lower than the market price, and it shall not be deemed that land and buildings are transferred en bloc.

Article 49 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act by Wrongful Calculation of Transfer Income Tax Act

2013Gudan22348

tanks 00

00. Head of tax office

August 13, 2015

October 29, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 201 against the Plaintiff on October 00, 2012 is revoked.

1. Details of the disposition;

A. On October 00, 1900, the Plaintiff acquired each of the two-story houses on the ground of this case (hereinafter “the instant building”) around 00:00 Do 00,000 Do 00 (hereinafter “the instant land”) and around 00 Do 1900, around October 1900.

B. The Plaintiff registered the transfer of ownership on the instant land to 00 Construction Co., Ltd. (hereinafter referred to as “non-party company”); on October 00, 201, the registration of the provisional registration of the right to claim the transfer of ownership based on the purchase and sale promise made on October 00, 201; on October 00, 201, the principal registration of the right to claim the transfer of ownership based on the provisional registration made on the purchase and sale agreement made on October 0, 2010; on the instant building, the registration of the transfer of ownership was completed on the ground of a donation made on October 00, 201, but did not report the transfer of ownership on the instant land.

C. A around October 00, 201, Nonparty Company entered into an agreement with A and B to sell the instant land and buildings in KRW 000,000, and completed the registration of ownership transfer on October 0, 201.

D. On October 00, 2012, the Defendant: (a) divided the purchase price of the instant land and building as the standard market price on October 00, 201; and (b) deemed KRW 000 as the market price of the instant land among them; (c) the Plaintiff transferred at a low price to Nonparty Company Co., Ltd., a special relationship corporation, and unjustly decreased tax burden; and (d) determined and notified KRW 000 of the transfer income tax for the year 201 in relation to the transfer of the instant land in accordance with the wrongful calculation provision (hereinafter “instant disposition”).

E. The Plaintiff filed an appeal against the instant disposition, but the said claim was dismissed on or around October 0, 2012.

[Reasons for Recognition] Facts without dispute, Gap 5, 8, Eul 1, 2, 4, 5, 7, 8, 9, 13 (each provisional parcel number)

Each entry, the whole purport of the pleading, including

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The date of the sales contract for the instant land does not constitute a person specially related to the Plaintiff. In addition, the date of the sales contract for the instant land is October 0, 2010, and the Plaintiff was fully liquidated the remainder of the instant land on October 0, 2010, and thus, on October 0, 2010, the transfer date of the instant land ought to be deemed as the transfer date. Accordingly, the Plaintiff’s purchase price of the sales contract for the first day of October 0, 201 cannot be deemed as the market price of the instant land for at least one year and three months.

2) On October 0, 2010, the Plaintiff transferred the instant land and buildings to the sub-committee company, but only the date different from the cause of registration, etc. for various convenience. Therefore, the instant land should be subject to the special provision on one house per one household on high-priced house as the land annexed to the instant building.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the wrongful calculation provision applies

A) According to Article 101 of the former Income Tax Act (amended by Act No. 11146, Jan. 1, 2012; hereinafter “Income Tax Act”) and Articles 98(1)4 and 167 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23588, Feb. 2, 2012; hereinafter “Enforcement Decree of the Income Tax Act”), if a resident with a special relationship transfers assets to a person with a special relationship at a price lower than the market price (if the market price is at least 30 million won or the market price is at least 5/100 of the market price), such transfer value is subject to imposition of capital gains tax by calculating the market price.

On the other hand, the market price shall be the transaction amount if there is a transaction fact on the relevant property within three months from the date of transfer of assets subject to the imposition of capital gains tax pursuant to Article 49 (1) 1 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act. In this case, the transfer date of assets subject to the imposition of capital gains tax shall be deemed the date of liquidation of the relevant assets pursuant to Article 98 of the Income Tax Act and Article 162 of the Enforcement Decree of the Income Tax Act, but if the date of liquidation is unclear, the transfer date of real estate shall be deemed the date of registration of transfer of ownership. In addition, where the transfer value is calculated according to the transaction example pursuant to Article 10 (2) of the Income Tax Act and Article 166 (6) of the Enforcement Decree of the Income Tax Act and where the classification of land, building, etc. is unclear, it shall be calculated in accordance with the proviso to Article 48-2 (4) of the Enforcement Decree

B) Determination

(1) Whether the Plaintiff is a person having a special relationship with the Nonparty Company

According to Gap evidence 14 and Eul evidence 10, the plaintiff was the representative director of the sub-committee company on October 00, 2010, which entered into a sales contract for the land of this case with the non-party company. Thus, it is reasonable to view the non-party company as a person having a special relationship with the plaintiff pursuant to Article 98 (1) 4 of the Enforcement Decree of the Income Tax Act.

(2) Whether the Plaintiff transferred the instant land at a price lower than the market price

According to the relevant laws and regulations, if there is a transaction related to the pertinent assets within three months from the date of transfer of the assets subject to the imposition of capital gains tax, the transaction value shall be deemed the market price, and the fact that there was a transaction related to the instant land and buildings around October 00, 201 as seen earlier, depending on the time of the transfer date, whether the transaction value of the pertinent land among the transaction value (in the above transaction, the land and the building was traded together with the instant land, and the classification of the value is unclear, so the amount calculated in accordance with the relevant laws and regulations shall be deemed the transaction value of the instant land) may be deemed the market

As to this, the Plaintiff alleged that the transfer date of the land in this case should be deemed to be the date of transfer, since all balance is settled in the non-party company on October 00, 2010. However, in light of the respective statements in Gap evidence 5, Eul evidence 3, and evidence Nos. 1, 9 (11) and 17, it is difficult to believe that each statement in evidence No. 1, 9 (11), and Gap evidence No. 15 is insufficient to recognize the above assertion, and there is no other evidence to prove the above assertion, it is reasonable to deem that the transfer date between the Plaintiff and the non-party company falls under the case where the balance settlement date is unclear, and it is reasonable to deem that the transfer date of the land in this case is October 0, 201, which is the date of ownership transfer registration. Accordingly, it should be deemed to be the market price of the land in this case.

In addition, the transfer price of the instant land between the Plaintiff and the Nonparty Company is not more than KRW 000,000 even based on the Plaintiff’s assertion. Since it is clear in calculating the difference between the above amount and the market price of the instant land is more than 5/100 of the market price, the Plaintiff appears to have transferred the instant land to the Nonparty Company at a price lower than the market price.

(3) Therefore, the Plaintiff’s act of land transfer against Nonparty Company is subject to wrongful calculation.

2) Whether the Plaintiff transferred the instant land and building collectively to the Nonparty Company

In cases where land attached to a house is transferred in installments pursuant to Article 72 (2) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance No. 293, Jun. 29, 2012) and Article 72 (2) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Strategy and Finance as of June 29, 2012), special cases on one house per household cannot be applied (the same shall apply in cases of special cases on one house for one household on a high-priced house). If capital gains tax is reduced or exempted on one house for one household on the land of this case, the Plaintiff should have transferred the relevant land and building en bloc, and the fact that the Plaintiff satisfies the non-taxation requirements of capital gains tax as it constitutes one house for one household and the land annexed thereto shall be deemed to have the burden of proof

Therefore, according to each of the statements in this case's land and building Nos. 5, 5, 9-1 and 2, it is recognized that the date of registration of transfer of ownership in the name of the small association about the land and building of this case and the grounds for registration are different from each other, and that the gift contract attached at the time of application for transfer of ownership in the name of the non-party company in the name of the non-party company as to the building of this case stated that "the real estate with the above indication (referring to the building of this case) shall be donated to the 00 Construction Co., Ltd. as the real estate entrusted under the name of the 00 Construction Co., Ltd. as a witness without compensation." In light of these facts and the purport of all arguments, it is difficult to

Therefore, the plaintiff's above assertion based on the premise that the land and the building in this case were transferred collectively is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.