Suwon District Court-2015-Gu Group-930 ( December 02, 2015)

The burden of proof for the transfer income of the land is on the tax authority if the land and the right of separation are transferred together.

It is illegal because there is no data to calculate the price of land and the price of public interest reduction right, and there is no other data to calculate the price of land and the price of public interest reduction right.

Article 94 of the Income Tax Act: Scope of Transfer Income

Seoul High Court 2015-Nu72940 Revocation of Disposition of Imposing capital gains tax

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○ Head of tax office

Suwon District Court Decision 2015Gudan930 Decided December 02, 2015

2016.08.30

oly 11, 2016

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposing capital gains tax of KRW 1,035,929,250 for the Plaintiff on August 1, 2014 shall be revoked.

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

The same shall apply to the order.

1. Quotation of judgment of the first instance;

The reasoning for the court's explanation concerning this case is that "the second to third to the second to the third to the first to the second to the second to the second to the judgment of the court of the first instance is null and void, so it is not subject to capital gains tax," and that even if the plaintiff resells the land of this case, the plaintiff sold the land of this case and the public interest interest stable. Thus, if the plaintiff excluded from the purchase price of 766 million won, which is the price for the sale of public interest stables, the transfer margin of the land of this case shall not occur if the purchase price of the land of this case is not 2 billion won," and the "this court" of the fourth to the fourth to the seventh to the court of the first to the third to the third to the third to the following third to the third to the following third to the court of the first to the contrary, it shall be cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. The main sentence (the part below the third sentence on the face of the first instance court Decision 7).

A. As to the assertion that the sale of a right to interest is nothing more than a sale

In full view of the following circumstances, i.e., (i) the Plaintiff asserted that the Plaintiff sold the instant land as well as the public interest axis in the relevant civil lawsuit against HH as seen earlier, and furthermore, in the process of concluding a contract with HH, the Plaintiff asserted that the Plaintiff determined the purchase price as KRW 2,200,000,000, considering the circumstances that the land without the right to the construction permit was KRW 1.2 million per square year and the land with the right to the construction permit was KRW 2,000,000,000 per square year; (ii) HH purchased the instant land and the right to the construction permit to use as a store for the business household’s storage in the relevant civil lawsuit; and (iii) the Plaintiff stated that the public official in charge of tax investigation acquired the instant real estate for which the construction permit was granted; and (iv) the sales contract between the Plaintiff and H was finally paid the purchase price agreed upon through the lawsuit, the Plaintiff’s assertion that the Plaintiff also transferred the instant land to H is without merit.

B. Whether the transfer margin accrues

(i) the subject matter of sale;

(4) As the Plaintiff’s right to purchase the instant land and the instant building that had been purchased under the name of H1 to 25 (including each number), the following circumstances, namely, ① the sales contract between the Plaintiff and H was indicated as approximately 1,045 square meters, approximately 135 square meters of building permission, and approximately 150 square meters of agricultural storage, etc.; ② the value at the time of the Plaintiff’s purchase of the instant land from JJ was 125,40 million won (per 12 million won x 12 million won per unit price) and the Plaintiff’s right to purchase the instant land and the instant building that had been purchased under the name of H1 to H1 to 200,000 won for the purpose of acquiring the instant land and the instant construction permit that had been purchased under the name of H1 to 200,000 won for the purpose of acquiring the instant land and the instant building permit that had been purchased under the name of H1 to 200,000 won for the instant construction permit.

(ii) the value of the subject matter of sale;

(1) Examining whether the transfer value of the instant land was 1.25 billion won or more, the time when the Plaintiff purchased the instant land from JJ and sold the instant land to HH does not have any difference between the time when the Plaintiff sold the instant land to HH, and there is no evidence of special circumstances that may cause a sudden change in the price of the instant land. As such, the Plaintiff’s difference between the Plaintiff’s purchase price of the instant land from JJ and KRW 1.254 million, which is the purchase price of the Plaintiff and HH’s sales contract, is most likely to be the purchase price of the public stable.

However, the following circumstances, which can be acknowledged by comprehensively taking account of the purport of the entire pleadings in each of the aforementioned facts and evidence and evidence as seen earlier, and evidence evidence Nos. 17 and 27 through 30 (including branches number in the event there are spot numbers), i.e., the individual land price of the instant land from Jan. 1, 2003 to Jan. 1, 2004, which was before granting a building permit, to increase the price of the instant land at KRW 39,100, and thus, it is likely that the price of the instant land could have increased. Thus, insofar as the method of the Plaintiff’s determination of the purchase price was not verified, it cannot be readily concluded that the Plaintiff transferred the instant land to HE with KRW 1.54 billion, unless the Plaintiff and HH present the method of determining the purchase price, the sale price of the instant land between the Plaintiff and HH was determined as a public right of KRW 500,000,000,000 for the instant land and the instant public right of KRW 400,00.

(2) On the other hand, in a lawsuit seeking revocation of a tax disposition, whether a disposition is lawful or not is determined depending on whether it exceeds a reasonable tax amount. The parties concerned may submit objective tax bases and materials supporting the legitimate tax amount until the closing of arguments in the fact-finding court. When a legitimate tax amount to be imposed lawfully is calculated based on such materials, only the portion exceeding the reasonable tax amount should be revoked. However, if not, the entire tax disposition should be revoked, and in such a case, the court does not have the duty to actively calculate the reasonable and reasonable tax amount to be imposed by finding out the methods of calculating the reasonable and reasonable tax amount ex officio (see, e.g., Supreme Court Decision 94Nu13527, Apr.

As seen earlier, the price of the instant land and the public interest reduction right are not specified under the sales contract, and there is no other data to calculate the price of the instant land and the public interest reduction right, so the transfer price of the instant land cannot be calculated, and accordingly, the instant disposition cannot be revoked in its entirety because the reasonable tax amount cannot be calculated. The Plaintiff’s assertion has merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for the reasons of its reasoning, and the judgment of the court of first instance shall be revoked and the disposition of this case shall be revoked as it is unfair for this conclusion.