Early High Court Decision 2012J 0703 (O4.10)

Since the profit is realized if the debt is exempted instead of directly receiving the purchase price of land, the transfer price of land is the amount of debt exemption.

The actual transaction price, which is the basis for the calculation of gains on transfer, means the actual amount agreed for the payment itself or at the time of the transaction, not the general market price that reflects the objective exchange value, but the actual transaction price.

Article 96 of the Income Tax Act

2012Guhap8725 Revocation of Disposition of Imposing capital gains tax

NewA

BB Director of the Tax Office

July 17, 2013

September 25, 2013

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 OOO(including additional OOO) for the transfer income tax belonging to the year 2005 against the Plaintiff on November 4, 2010 is revoked.

1. Details of the disposition;

"A. On October 31, 2002, the plaintiff and thisCC acquired OE prior to 106 o-dong 1,458 m2 (hereinafter "the land in this case") in the name of thisCC, and completed the registration of ownership transfer under the name of thisCC on July 19, 2005, and sold this land to OE for the purchase and sale amount. Of the above sale amount, OOOO acquired the collateral obligation of the establishment registration on the land in this case, in lieu of the plaintiff's direct receipt of the mortgage registration, OOOOOO had been paid in lieu of the plaintiff's acquisition of the collateral obligation of the establishment registration on the land in this case, and the plaintiff's OOOOOO used the remainder of the purchase and sale of the land in this case, and 174-1, 174-2, 174-2, 1700 OOOO, and 260 OOOOO.2.

C. On July 27, 2010, the Plaintiff submitted to the Defendant a written confirmation that the part of the acquisition price of the instant land was borne by the Plaintiff, and that the part of the purchase price reverted to the Plaintiff is an OO won, and the Defendant notified the Plaintiff of the pre-announcement of capital gains tax in accordance with the said written confirmation.

D. Accordingly, the Plaintiff filed a request for review of the legality before taxation, and during the process of the request for review, submitted the data to the effect that the Plaintiff was paid OOOOOOOO won in the intermediate payment that the Plaintiff received from OE and OF, and that the Plaintiff was paid OOOO won by filing a claim for the agreed amount against OE and OF. Accordingly, on November 4, 2010, the Defendant notified the Plaintiff of the part belonging to the Plaintiff out of the purchase and sale amount of the instant land (including additional OOO) of the transfer income tax for the year 2005 (hereinafter “instant disposition”).

[Reasons for Recognition] The whole purport of the arguments, as described in the facts without dispute, Gap evidence 1, Eul evidence 1, 1, 2, 3, 6, 7, and 8 (including household numbers), and

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Of the transfer amount of the instant land, the part attributable to the Plaintiff is the Plaintiff’s claim for newE and OOOOOOF, and the Plaintiff received only OOOOO from newE, OF, and OE, and OF are insolvent, and the transfer amount of the instant land corresponding to the Plaintiff’s share should be reduced to OOO.

2) Among the transfer income tax paid by thisCC, the OOO members are part of the OO members that the Plaintiff delivered to thisCC, and thus, the Plaintiff should be deemed to have already paid and deducted.

3) Even though the Plaintiff was unable to report capital gains tax because it was not a person registered as the title holder of the instant land, it is unreasonable to impose penalty tax on the Plaintiff.

(b) Fact of recognition;

1) The newE, and the Fund decided to purchase OO-Gu OO-dong 174-1, and 174-2, from ED and ED, the type of ED would have completed the registration of ownership transfer in the name of OF on April 4, 2005, where the right to claim the registration of ownership transfer was a preserved right, but the registration of ownership transfer was completed in the name of OF on October 8, 2008.

2) On the other hand, on July 7, 2008, the new E, E, E, E, E, HaF, and HaH prepared and delivered to the Plaintiff a letter of agreement with the following terms:

1.In the course of purchase of land by ED, EE, and EF from EG, the OOOE was borrowed from EG as land price.

2.E, OOO-Gu OO-dong 174-1.2, PH shall transfer to OO-si O-dong 174-2, and shall meet the agreed amount of OOOO-2, after obtaining a financial loan first priority, and after obtaining a new E, OF, and HaF, and HaH shall meet the agreed amount of OO-O-O-2.

3) On December 21, 2009, the Plaintiff filed a lawsuit claiming an amount agreed upon with OEF (2009Gahap13732) with OEF, and was sentenced on July 8, 2010 to the effect that the payment of OOO and interest for delay was made with OOO and interest from OF. The Plaintiff was sentenced on July 8, 2010 to the effect that OOO and interest for delay was paid with OF.

[Reasons for Recognition] Description 5 and 6

C. Determination

1) Judgment on the first argument

The Income Tax Act adopts the so-called principle of confirmation of right to the calculation of taxable income, and adopts the so-called "right to the calculation of taxable income," and even when a claim causing income has occurred, if it is objectively apparent that the claim subject to taxation becomes impossible to recover due to the debtor's bankruptcy, etc. and that it becomes no possibility to realize the future income in the future, income tax on the economic benefits should lose its premise, and such income cannot be levied on taxable income. However, it should be clearly stated that the taxpayer has no income to be taxed by asserting and proving such circumstance, and at this time, the issue of whether the claim is impossible to recover should be determined by an objective method of assessment by taking into account the debtor's assets situation and payment ability, etc. (see Supreme Court Decision 2001Du1536, Oct. 25, 2002). In addition, the calculation of the gains from transfer refers to the amount of actual transaction price, not the objective market price, but the actual market price at the time of the transaction itself or the actual payment (see Supreme Court Decision 2001Du1536, etc.).

See Supreme Court Decision 2006Du7171 Decided April 26, 2007

The part of the intermediate payment of the purchase price for the instant land is the part that belongs to the Plaintiff, and the receipt method thereof is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part that is the part of the instant land is the part that is the part that is the part of the transfer price.

Even if the Plaintiff’s domestic assertion that the transfer value of the instant land should be limited to the Plaintiff’s claims of the OOOO members, which the Plaintiff had with respect to new E and EF, and as seen earlier, the Plaintiff cannot be concluded to have no possibility of discharging obligations from E, E, E, EF, and H, as long as the Plaintiff newly delivered a letter of agreement to receive the above OOO members from E, E, E, EF, and H H, and as such, it cannot be said that the said claim is an irrecoverable claim.

Therefore, this part of the plaintiff's assertion is without reason.

(ii) Judgment on the second argument;

According to the statement of evidence No. 3, it is recognized that the transfer income tax paid by thisCC was transferred to thisCC from the account in which the name cannot be confirmed. However, unless the Plaintiff reported and paid the transfer income tax, the transfer income tax paid by thisCC cannot be deemed to have been paid by the Plaintiff, and even if the Plaintiff actually transferred the transfer to thisCC for the payment of the transfer income tax, it is merely an internal circumstance between the Plaintiff and thisCC. Therefore, the Plaintiff’s assertion on this part is without merit.

3) Judgment on the third argument

Under the tax law, additional tax is an administrative sanction imposed in accordance with the law in cases where a taxpayer violates a tax return and tax liability as prescribed by the law without justifiable grounds in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim (see Supreme Court Decision 2013Du1829, May 23, 2013). The instant disposition imposing additional tax is lawful on the Plaintiff on the ground that the Plaintiff faithfully performed the tax return and tax liability on the ground that: (a) the Plaintiff appears to have been a registered titleholder of the instant land to avoid various legal and administrative burdens, such as tax obligations, from the beginning; and (b) the Plaintiff claims that the Plaintiff remitted the amount of capital gains tax that is not based on the actual transfer value to thisCC.

3. Conclusion

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