National Tax Service Review and Transfer 2009-0028 (209.06.09)

Since it did not meet the requirements for reduction and exemption for 8 years, the imposition of capital gains tax is legitimate.

The plaintiff's assertion that the purchase price was less than the actual one is without merit, and since the period of residence is merely about 6 years and 5 months and falls short of the requirements for re-laws for more than 8 years, a disposition that denies the reduction or exemption of capital gains tax is legitimate.

209Guhap1653 Disposition of Imposition of Transfer Income Tax

209Guhap1660(Joint), revocation of revocation of the imposition of resident tax

○ Ma clans

1. ○○ Head of Tax Office 2. ○○

1. All of the plaintiff's claims are dismissed.

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

The disposition of imposition of capital gains tax of KRW 700,418,910 against the plaintiff on January 5, 2009 and the disposition of imposition of capital gains tax of KRW 14,318,050 against the plaintiff on January 5, 2009 shall be revoked.

1. Details of the disposition;

A. The Plaintiff transferred each of the said real estate to the Plaintiff on June 16, 1995, each of the instant real estate on a housing site of 33,256 square meters in Gyeonggi-do, ○○○○○○, ○○○○○, 88,256 square meters in Do, and 88-1,45 square meters in ri, 491, 793 square meters in ri, 492-1, 492-1, 141 square meters in ri-ri, 511-1, 511-2, 511-2, 92 square meters in ri-ri-ri, 511-3, 479 square meters in ri-ri-ri, 492 square meters in ri-ri-ri, ○○○○, ○○○, ○○○, which was acquired on January 1, 1997.

B. On July 23, 2008, the Plaintiff applied the tax base of KRW 3.8 billion for the total of KRW 3.8 billion with the transfer price of each real estate of this case to a third party on March 31, 2007, which was KRW 3.5 billion at KRW 1,870,907,910, tax rate of KRW 36%, and the tax rate of KRW 69 of the former Restriction of Special Taxation Act (amended by Act No. 9921, Jan. 1, 2010; hereinafter the same) and the tax base of KRW 100,000,000, and the preliminary return tax credit of KRW 55,672,851, and the tax base of capital gains tax to be voluntarily paid at KRW 4,588,497, which was determined as capital gains tax to be paid at KRW 501,549,585,497, May 37, 2005.

C. On November 27, 2008, following the Plaintiff’s preliminary return tax deduction and the Plaintiff’s prior notice of taxation to deny the application for reduction and exemption on eight (8) years under Article 69 of the former Restriction of Special Taxation Act, the head of the original tax office imposed a disposition of imposition of KRW 70,418,910, which applied the Plaintiff’s tax base of KRW 1,870,907,910, the Plaintiff’s above transfer price of KRW 3.8 billion to KRW 36%, the tax rate of KRW 4,588,497, the paid tax amount of KRW 43,180,560 (hereinafter “instant disposition of imposition of capital gains tax”), and on January 5, 2009, the Defendant original tax imposed a disposition of imposition of KRW 700,418,910, the paid tax amount of KRW 43,560, the paid tax amount of KRW 4300,910 (hereinafter “instant disposition of imposition”).

D. On February 9, 2009, the Plaintiff filed a request for review of the disposition imposing the transfer income tax of this case with the Commissioner of the National Tax Service, and the Commissioner of the National Tax Service dismissed it on June 9, 2009.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, 6, 7, Eul evidence 1, 2, 6, Eul evidence 1, 1, 2 Eul evidence 1 and 2 (including virtual numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Judgment on the defenses before the merits of the original tax office

A. The assertion by the director of the tax office of the original state

In the case of a tax return method, the taxpayer is obligated to pay the tax amount with the return determined at the time of filing the tax base and amount of tax, and thus, if the taxpayer fails to pay the tax base and amount of tax and without any correction, it is a collection disposition for the collection of the final tax, and cannot be deemed as a taxation subject to a revocation lawsuit. The instant disposition of capital gains tax is a combination of the tax amount denying the reduction or exemption by self-declaration under the former Restriction of Special Taxation Act and the remaining tax amount payable by the Plaintiff after self-declaration. The latter is that the head of the tax office having the head of the tax office of the original state pay the same tax amount as the reported amount without any correction of the Plaintiff’s reported amount. Accordingly, the instant lawsuit on this part is unlawful.

B. Determination

In a case where the tax authority issues a revised disposition by deeming that there is an error or omission in the details of a tax base and amount reported, the tax authority’s revised disposition shall lose the effect of the final return when a revised disposition is made (see, e.g., Supreme Court Decision 86Nu911, Mar. 10, 1987).

In this case, even if the Plaintiff applied the reduced or exempted tax amount not recognized by the head of the original tax office, since the final return of tax base of capital gains tax pursuant to Article 110 of the Income Tax Act was filed, the imposition of increased capital gains tax by denying the application of the reduced or exempted tax amount constitutes a disposition of rectification pursuant to Article 114(2) of the Income Tax Act. In addition, except the reduced or exempted tax amount, the portion of the tax amount excluding the reduced or exempted tax amount is substantially identical to the details of the Plaintiff’s return and the decision of the head of the original tax office, and is determined separately by the Plaintiff’s return, and the relevant reduced

Therefore, the above assertion by the director of the tax office of the original state on the premise that only the tax amount other than the abated or exempted tax amount is already determined, is without merit.

3. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

(1) Although the sales price of each of the instant real estate was in fact KRW 1.7 billion, the Plaintiff, the former president, and the purchaser conspireded to set the sales price at KRW 3.5 billion in a false manner. Therefore, each of the instant dispositions based on the premise that the sales price of each of the instant real estate was KRW 3.5 billion is unlawful.

(2) Each of the dispositions of this case, which denied reduction and exemption for eight years, even though the largestCC, which is the Plaintiff’s clan, directly manages each of the instant real estate from around 1984 to the transfer of each of the instant real estate, was unlawful.

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

(1) Determination as to the assertion that the purchase price has been unrefilled compared to the actual price

In light of the purport of the entire arguments in the statements in Gap evidence Nos. 2, Eul evidence Nos. 3, 4, 7, 9, 11, and 12, the sales price of each real estate of this case is recognized as having been KRW 3.5 billion, and each statement in Gap evidence Nos. 3 and 4 does not interfere with the above recognition. Therefore, the plaintiff's above assertion is without merit.

(2) Determination on the assertion that the requirements for self-sufficiency reduction are satisfied

(A) In order to become the object of exemption from capital gains tax, each of the instant real estate shall be residing in the Si/Gun/Gu where each of the instant real estate is located in the Si/Gun/Gu or Gu adjacent thereto for not less than 18 years after the Plaintiff acquired each of the instant real estate in accordance with the provisions of the former Restriction of Special Taxation Act and the Enforcement Decree of the same Act (amended by Presidential Decree No. 20620, Feb. 22, 2008; hereinafter the same) (hereinafter referred to as "re-laws requirements"), and (2) the Plaintiff shall have the burden of proving such requirements.

(B) First of all, we examine whether the Plaintiff satisfies the requirements for re-village, and the Plaintiff’s testimony of the number of witnesses, which is consistent with the fact that the lastCC, which was the Plaintiff’s clan, resided in the room located in part of each of the instant real estate from around 1984 to 2007, is difficult to believe it, and there is insufficient evidence to acknowledge it. Rather, according to the evidence No. 14, there is no other evidence to acknowledge it. Rather, according to the evidence No. 14, the period during which the Plaintiff’s lastCC, which was the Plaintiff’s clan, resided in the Si/Gun/Gu adjacent to each of the instant real estate, is merely the location of each of the instant real estate or the period from November 6, 1984 to May 29, 2009 to May 1, 2003 to March 1, 2004, from March 16, 2004 to March 8, 2005.

(C) The Plaintiff’s transfer of each of the instant real estate did not meet the requirements for re-laws for not less than eight years, which is the requirement for exemption from capital gains tax under the former Restriction of Special Taxation Act and the Enforcement Decree of the same Act at the time of transfer. Therefore, each of the instant real estate, regardless of whether it satisfies the requirements for self-reliance, cannot be deemed as falling under the self-Governing farmland

4. Conclusion

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