early 2013 Middle 1446 (20 June 20, 2013)

The repayment amount of inherited debt shall not be deemed necessary expenses because it is not related to the acquisition of real estate by inheritance.

It is difficult to deduct the relocation expenses corresponding to the inherited debt, not the litigation expenses, etc. due to the litigation, and the amount of redemption of debts from the necessary expenses of the disputed house, and the amount of debts related to the provisional registration of purchase and sale shall not be deemed the acquisition

Article 97 (Calculation of Necessary Expenses for Transfer Income)

Article 163 of the Enforcement Decree of the Income Tax Act

2013Guhap2462 Revocation of Disposition of Imposing capital gains tax

KimA

BB Director of the Tax Office

September 12, 2014

September 26, 2014

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The Defendant’s disposition of imposition of KRW 48,808,320 on December 28, 2012 against the Plaintiff was revoked.

1. Details of the disposition;

A. On January 10, 200, the Plaintiff received inheritance of 00 ○○○○-dong, ○○○○-dong, 108-52 56.19 m2 and 56.1 m2 m2 (hereinafter “instant land and buildings”).

B. On December 24, 2004, the Plaintiff redevelopment the surrounding areas, including the instant land and buildings, and based on the management and disposal plan formulated on redevelopment on December 24, 2004, △△△△△△ apartment 108 Dong 1103, 1103 (hereinafter “instant Ampha”) constructed on the instant land and buildings, instead of the instant land and buildings.

The Plaintiff acquired the ownership of the apartment of this case. Meanwhile, in the voluntary auction procedure of 2010,000, which was in progress with respect to the apartment of this case, YangD paid KRW 000,000 on May 11, 2011 with a permit for sale, and completed the registration of ownership transfer thereafter. On August 1, 201, the Plaintiff made a preliminary return of transfer income tax on the Defendant by deeming that the transfer income tax falls short of taxation.

C. On December 28, 2012, with respect to the transfer of ownership of the instant apartment to the Plaintiff, the Defendant: (a) deemed that the transfer value of the said apartment at KRW 000,000,000,000, excluding the acquisition value of KRW 000,000,000 as well as the necessary expenses at KRW 00,000,000; and (b) imposed a disposition of KRW 00,000,00 as transfer income tax for the year 201 (hereinafter “instant disposition”).

D. On March 25, 2013, the Plaintiff filed an appeal seeking the revocation of the instant disposition with the Tax Tribunal. On June 20, 2013, the Plaintiff received the dismissal ruling, and the said decision reached the Plaintiff on July 2, 2013.

Facts that there is no dispute over recognition, Gap evidence 1, 5, 9, Eul evidence 1, the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Since the disposition of this case is erroneous as follows, it shall be revoked.

1) The Plaintiff completed the inheritance registration around June 29, 202, after the Plaintiff repaid to KimE the debt of KRW 000,000,000 with the principal and interest borrowed from the registration of the right to claim ownership transfer registration on the instant land and building as collateral to the Plaintiff around September 10, 1998, and the deceased paid the relocation expenses borne by the deceased to △△ Construction Co., Ltd. that constructed the instant apartment around 1996, and the interest thereon. Since each of the above repayment amounts falls under the acquisition value under Article 163(1) of the Enforcement Decree of the Income Tax Act, the Defendant did not deduct even though it should be deducted as necessary expenses in the process of calculating the transfer income tax.

2) As to the instant land and building inherited from the deceased, the Plaintiff completed provisional registration on the ground of a pre-sale agreement with Kim E in order to secure the decedent’s obligation to borrow money against KimE. As above, as to the real estate provisionally registered for the purpose of securing the decedent’s obligation to borrow money, Article 66 of the Inheritance Tax and Gift Tax Act, which provides that the secured claim amount and the market value as of the commencement date of the inheritance should be applied to the real estate where a mortgage has been established on the inherited property or the secured claim amount and the market value as of the commencement date of the inheritance, whichever are larger, as of the commencement date of the inheritance of the instant land and building. Therefore, the acquisition value shall be deemed as the repayment obligation for KimE, which is larger than the market value as of the commencement date of the inheritance of the instant land and building, but the Defendant assessed KRW

B. Relevant statutes

The statutes related to the instant case shall be as shown in the attached Form.

C. Determination

1) As to the Plaintiff’s assertion of Paragraph 1

At the time of the commencement of inheritance due to the death of the deceased, the Plaintiff comprehensively succeeds to the rights to the land and buildings of this case, and such effects are legally generated, and the registration of inheritance is not required. Therefore, the Plaintiff acquires the ownership of the land and buildings of this case due to inheritance at the time of the death of the deceased. Even if the Plaintiff paid KRW 00,000,000 to △△ Construction Co., Ltd., and the Plaintiff paid KRW 00,000,000,000 to Kim E, as alleged by the Plaintiff, each of the above repayment amounts cannot be deemed to be included in the acquisition value under Article 97 (1) 1 of the Income Tax Act, since it is not related to the Plaintiff’s acquisition of ownership of the land and buildings of this case due to inheritance, and thus, the Defendant’s measures that did not deduct each of the above amounts from the transfer value is proper, and this part of this assertion is without merit.

2) As to the Plaintiff’s assertion of Paragraph 2

Article 163(9) of the Enforcement Decree of the Transfer Income Tax Act provides that, in applying the acquisition value as stipulated in the main sentence of Article 97(1)1 (a) of the Inheritance Tax and Gift Tax Act to inherited property, the value assessed under the provisions of Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the date of commencing the inheritance shall be the actual transaction value at the time of acquisition, and Article 66 of the Inheritance Tax and Gift Tax Act and Article 63(1)4 of the Enforcement Decree of the same Act provides that, in cases where a mortgage has been established on inherited property or a mortgage has been offered as a security for transfer, the larger amount between the secured debt and the market value as of the date of commencing the inheritance shall be the inherited property value. However, according to the record of evidence No. 4, the deceased can only be recognized as having completed provisional registration of the right to claim ownership transfer registration on the land of this case against Kim E on September 14, 198 without establishing a mortgage, Article 66 of the Inheritance Tax and Gift Tax Act cannot be applied

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

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