early 2010 Heavy3022 ( October 20, 2015)

Since it is recognized that land is acquired and transferred, disposition imposed on capital gains tax is legitimate.

The fact that land was acquired and transferred can be recognized in light of the fact that the registration for transfer of ownership was completed with the buyer's full payment of the purchase price, the fact that the sale price was entered as the seller in the sales contract, and the fact that the purchaser was settled and settled in full, etc.

2011Guhap10417 Revocation of Disposition of Imposing capital gains tax

KimA

The superintendent of the tax office

August 10, 2012

September 7, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 000 on February 1, 2010 against the Plaintiff on February 1, 2010 is revoked.

1. Details of the disposition;

가. 원고는 2005. 2. 18. 평택시 서탄면 OOO리 000 잡종지 392㎡， 같은 리 000 임 야 4，992㎡， 같은 리 000 임야 4，559㎡， 같은 리 000 전 936㎡， 같은 리 000 전 1，431㎡ 등 5필지 토지(이하 '이 사건 토지'라고 한다)에 관하여 매도인 원고 및 원고의 처 정DD， 매수인 김EE， 총매매대금 000원으로 된 매매계약을 체결하고， 2005. 4. 14. 김EE으로부터 매매대금 전부를 수령하였다.

B. Of the instant land, the registration of ownership transfer was made in each Kim E-E on September 9, 2009 with respect to the land of Pyeongtaek-si 00, 000 (in the case of the land on the two parcels, the land was in the name of HoD, and the remaining land was in the name of the plaintiff) and 000, the ownership transfer was made in each Kim E-E name on December 13, 2007, 00, and 000.

C. On May 28, 2008, the Plaintiff reported the transfer income tax base on the transfer of each of the instant land to KimE to KRW 000 ( KRW 000, KRW 000, KRW 000, and KRW 000). However, on February 1, 2010, the Defendant, as the actual owner of the instant land, deemed that the Plaintiff, as the actual owner of the entire land, transferred the said land to KimE to KRW 000, and notified the Plaintiff of the correction and notification of KRW 00 (including KRW 00,00) of the transfer income tax for the year 2005 (hereinafter “instant disposition”).

D. On June 4, 2010, the Plaintiff dissatisfied with the instant disposition, filed an objection with the Commissioner of the Central Tax Office, and the Director of the Central District Tax Office partially admitted the Plaintiff’s objection to the effect that KRW 000 is included in necessary expenses for a certified judicial scrivener, and the Plaintiff filed a request for an inquiry with the Tax Tribunal on August 31, 2010, but dismissed on May 20, 2011.

E. On November 25, 201, when the instant lawsuit is pending, the Defendant, and on January 10, 201, the transfer income tax amount of 000 won, and on January 10, 2012, when the Plaintiff acquired and paid the instant land, the transfer income tax amount of 00 won was reduced or exempted as necessary expenses, and 000 won was additionally recognized as necessary expenses and corrected the amount of capital gains tax of 000 won paid by the Plaintiff in relation to the deposit expenses for a large amount of restoration expenses on May 23, 2012. Accordingly, the transfer income tax amount of the instant disposition taken by the Defendant against the Plaintiff was 00 won (=00 - 000 won - 000 won - 0000 won - 0000 won) remaining (hereinafter referred to as “the instant disposition”).

[Ground of Recognition] The non-speed facts, Gap evidence 1, 2, Eul evidence 3 through 7, Eul evidence 9, Eul evidence 1, 2, Eul evidence 4, Eul evidence 8, Eul evidence 1, 2, 9, and Eul evidence 11-2, and Eul evidence 11-2, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff purchased the instant land from the original KimG and Kim H, but did not pay any balance, rescinded the sales agreement, and arranged for the sale and purchase of the instant land as a proxy of KimGG and Kim H, and conducted the sale and purchase of the instant land in the name of the Plaintiff, and thereafter transferred the instant land to KimE (K). Therefore, the instant disposition taken on the premise that the Plaintiff transferred the instant land to KimE, was unlawful.

(2) Even if the Plaintiff transferred the instant land to KimE, KRW 000, such as the cost of soil disposal, etc. paid by the Plaintiff regarding the instant land, should be recognized as necessary expenses.

B. Determination

(1) Whether the transferor of the instant land is the Plaintiff

In addition to the above evidence, Eul evidence No. 5-2, Eul evidence No. 6-1, and Eul evidence No. 2, the following circumstances are acknowledged, i.e., (i) ownership transfer registration was made with respect to the land of this case in the name of the plaintiff and the plaintiff's wife, (ii) the plaintiff and JungD received 00 billion won from KimE and completed the ownership transfer registration with respect to the land of this case, and (iii) the sales contract stating the seller as Y, and the purchaser as 00 won, was made, and HaD paid 00 won in full to KimE on April 14, 2005, the plaintiff and HaD stated that this case's land was purchased at 0G 20,000, and that the plaintiff did not purchase the land of this case to Y 20G , and that the plaintiff did not purchase the land of this case to Y 20G 3278, and that it did not purchase the land of this case until that time.

(2) Whether necessary expenses are recognized

The burden of proof on the legality of taxation, including the transfer income tax base, is imposed on the tax authority, and the tax base is deducted from the transfer value, so the burden of proof of necessary expenses is also imposed on the tax authority in principle. However, since the items alleged by the plaintiff as necessary expenses are in the area controlled by the plaintiff, it is difficult for the tax authority to investigate the plaintiff, while it is difficult for the plaintiff as the defendant, while it is difficult for the tax authority to prove the necessary expenses, and such necessary expenses are in accord with the principle of fairness (see, e.g., Supreme Court Decisions 2002Du1588, Sept. 23, 2004; 2006Du16137, Oct. 26, 207; 2006Du16137, Oct. 207; 7, 2007; and 100 won or 200 won or 100 won of the land remaining after the completion of the survey, and 100 won or 200 won of the land remaining after the survey.

3. Conclusion

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