Busan District Court-2015-Gu Partnership-1565 (Law No. 18, 20163)

If the transferor’s reported acquisition value cannot be seen as the actual transaction value, the conversion acquisition value can be calculated.

Where the transferor is different from the transaction value, etc. reported by the former owner and both are unable to be deemed the actual transaction value, the initial disposition that calculates and determines the conversion acquisition value by deeming the actual transaction value is unclear.

Article 114 of the Income Tax Act (Determination and Revision of Tax Base and Amount of Transfer Income Tax)

2016Nu20630 The revocation of revocation of the determination and imposition of tax base and tax amount

○ ○

○ Head of tax office

Busan District Court Decision 2015Guhap1565 Decided March 18, 2016

January 13, 2017

February 3, 2017

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's disposition of correction and imposition of capital gains tax of KRW 59,645,93 to the plaintiff on October 13, 2014 shall be revoked.

1. Details of the disposition;

A. On September 10, 2002, the Plaintiff purchased a three-story building on the ○○○○○○○-dong ○○○○○○○○○-dong ○○○○○-dong, 455.1 square meter and its ground, and completed the registration of ownership transfer on October 25, 2002, and completed the registration of ownership transfer on August 28, 2012 to the headB on May 31, 2012.

B. On October 31, 2012, the Plaintiff reported the transfer income tax for the taxable year 2012 with the acquisition value of KRW 1,455,00,000 and the transfer value of KRW 1,480,000,000.

C. Since then, the Defendant: (a) considered the acquisition value as KRW 1,430,00,00 based on the newly presented contract by the Plaintiff as the acquisition value of KRW 1,249,936,717 on the grounds that the acquisition value was unclear; (b) notified the Plaintiff of the correction and notification of KRW 59,645,990 on October 13, 2014 on the ground that the acquisition value was converted as KRW 1,249,936,717 on the converted price (hereinafter “instant disposition”).

D. Although the Plaintiff filed a request for a tax trial by filing an objection, the Plaintiff was dismissed on May 12, 2015.

[Ground of recognition] Facts without dispute, Gap evidence 3, 4, Gap evidence 7-2, Gap evidence 8, 9, Eul evidence 1 through 5, the purport of the whole pleadings

2. Determination on the legitimacy of the instant disposition

A. The plaintiff's assertion

1) Subject to the condition that BB acquires a total of KRW 18,058,000,000, including collateral loans of KRW 990,000,000,000, and lease deposit repayment claims, which are collateral loans of KRW 50,000,00,000, which are collateral loans related to bath bath, and KRW 18,058,000,000,000, such as the lease deposit repayment claims, the Plaintiff and the headB exchanged the share of KRW 180,00,000,000 among the market price of the instant bath and the headB-owned ○○○○○○○○ ○○○ ○○ ○○ 3626,40, 362640, and the share of KRW 14942,00,000,000,000,000,000.

2) The Plaintiff acquired the instant bath in KRW 1,430,00,000 and had actual transaction value. Therefore, it was erroneous for the Defendant to calculate the acquisition value of the instant bath at the conversion price on the grounds that the acquisition value of the instant bath is unclear.

3) Even if the acquisition value is unclear, insofar as the acquisition value is obvious, no transfer income tax may be imposed on the basis of the converted value.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination on the transfer value

Comprehensively taking account of the overall purport of evidence evidence Nos. 11 and 12 as well as the overall purport of the arguments, the fact that the Plaintiff’s spouse, took over ownership of real estate from BB on June 5, 2012 to BB on the ground of sale and purchase on May 31, 2012, and the actual transaction recorded in the certificate of all the registered matters of the overB real estate is 12,00,000, and 68,000,000,000 won, respectively.

However, comprehensively taking account of the aforementioned evidence and evidence Nos. 1 and 2-3 as well as the following circumstances acknowledged by the purport of the entire statements and arguments, the transfer value of the bath in this case shall be KRW 1,480,000,000, which is the Plaintiff’s return amount of tax base of capital gains tax. Thus, this part of the Plaintiff’s assertion is without merit (the Plaintiff is disputing only the acquisition value in the appellate court and does not dispute the transfer value).

① The party who entered into a real estate sales contract shall report the actual sale price, etc. pursuant to Article 3 of the Act on Report on Real Estate Transactions, Etc., and shall be punished by a fine for negligence. The Plaintiff, while transferring the bath in this case, reported the transaction price to KRW 1,480,00,000, and the registration price of the bath in this case also entered in the entire registration certificate as to the bath in the transfer amount. Therefore, it is reasonable to view the transfer price as the transfer price, unless there are special circumstances to determine the transfer price differently.

② On October 31, 2012, the Plaintiff was at the time of filing a transfer income tax base return, and the transfer value was KRW 1,180,000,000 at the time of filing a request for rectification of the tax base and amount of tax on December 22, 2014; KRW 1,220,000 at the time of filing a tax judgment; and KRW 1,238,00,000 at the time of filing the instant lawsuit; and there was no objective data supporting the Plaintiff’s statement after filing the report.

③ The exchange contract entered into with the headB on May 8, 2012 is that the Plaintiff exchange the instant bath and the headB real estate, but the headB takes over the obligations of the instant bath, and it does not specify the transaction price of the BaB real estate or the obligations taken over by the headB.

2) Determination of acquisition value

The Plaintiff’s evidentiary documents for KRW 1,430,00,00 of acquisition value claimed by the Plaintiff include a sales contract (Evidence 2-1 of the Evidence A), a written statement (Evidence 5-1 of the Evidence A), a written statement for the examination of the Plaintiff, and the statement to the purport corresponding thereto include some of the statements made by ChoA and KimE, and the party’s personal examination results on the Plaintiff in the trial. However, the aforementioned evidence, evidence Nos. 2-1, 2, 4, 5, 11 of the Evidence A, 14-1 through 6, 8, 9 of the Evidence Nos. 14-1 through 6, 14-2, 14-2, and 9 of the above evidence, and each financial transaction information on ○○○○ branch in the Si/Gun/Gu branch in the court of the trial of the first instance, and the following circumstances acknowledged by the examination results of the Plaintiff, the results of the examination of the Plaintiff, and the purport of the entire pleadings against the Plaintiff, thus, it cannot be asserted that the Defendant’s acquisition value of this part of this case is justified.

① 먼저, 원고가 이 사건 목욕탕 취득 당시 실지거래가액의 증빙서류로 제시하는 매매계약서(갑 제2호증의 1)에 대하여 본다. 위 매매계약서는 다른 매매계약서 매매대금이 1,455,000,000원인 매매계약서(을 제3호증), 매매대금이 1,370,000,000원인 매매계약서(당심 법원의 ☆☆은행에 대한 사실조회결과에 첨부된 자료), 매매대금이 1,100,000,000원인 매매계약서(갑 제2호증의 2) �와 달리 특약사항이 구체적으로 기재되어 있고, 실제 대출액 1,000,000,000원이 위 매매계약서의 특약사항에 그대로 기재되어 있다는 점에서 그 신빙성이 높다고 볼 여지가 있기는 하다. 그러나 한편 아래와 같은 사정들을 함께 고려해 보면, 매매대금이 1,430,000,000원인 위 매매계약서의 기재 내용을 그대로 신뢰할 수는 없다.

First, the Plaintiff submitted a false sales contract (Evidence No. 3) with the acquisition price of KRW 1,455,00,000 at the time of filing the tax base of capital gains tax. After the Defendant’s investigation, the Plaintiff submitted a sales contract (Evidence No. 2-1) with the purchase price of KRW 1,430,000,000 at the ○○○○○ branch of the Seoul Special Self-Governing City in order to pay the remainder at the time of acquiring the bath of this case. In order to obtain a loan of KRW 1,00,000 from the purchase price of KRW 1,370,000 at the ○○ branch of the Seoul Special Self-Governing City in order to pay the remainder at the time of acquiring the bath of this case, it is difficult to trust the authenticity of the establishment and the authenticity of the entries in the sales contract at the time of submitting the sales contract (financial transaction information on the ○○ branch of the Seoul Special Self-Governing

Second, the above sales contract (No. 2-1 of the evidence No. 1 of the above sales contract) contains no seal impression of the seller as to the sale price of 1,370,00,000, while the sale price of 1,430,000 is likely to bear the seal impression of the seller. If the above sales contract (No. 2-1 of the evidence No. 2-1 of the above sales contract) is true, the plaintiff bears the seal impression of 1,430,000 in order to obtain a loan from the bank at the time of acquiring the real estate of this case, and there is no reasonable ground for submitting the sales contract for 1,370,000 with a lower price than 00,000 with a seal impression of 00,0000 with a seal impression of 00,000,0000 with the previous owner's seal purchase price of 0,0000,0000 in the above sales contract at the time of acquiring the real estate of this case.

Third, as seen below, although the purchase price is stated in the above sales contract as KRW 1,430,00,000, as in the statement of self-payment submitted by the Plaintiff, the specific payment details and the remaining payment date are different, and the actual payment amount that the Plaintiff paid to ChoA is also different from the sales contract that causes KRW 1,430,000,00.

② Next, we examine the Plaintiff’s written statement (Evidence A No. 5) presented as documentary evidence of the said actual transaction value. The witness Kim E-E bears the testimony that the said written statement was duly formed with respect to the said written statement, and as seen earlier, the sales amount of KRW 1,430,000,000 is the same as the sales amount under the said sales contract (Evidence A-2-1 of the said sales contract). Meanwhile, considering the following circumstances, it is difficult to trust the details of the written statement of the said written statement, which constitutes KRW 1,430,000,000, as it is.

First, the plaintiff testified that the wife Park F of Cho-A, who is the author of the above self-written contract (A evidence 5), is not aware of the above self-written contract without knowledge of the above self-written contract at the court of the first instance.

Second, the above written contract provides that "at the time of the contract, the intermediate payment of KRW 20 million + KRW 1.365 million as of October 28, 2002, including KRW 1.65 million, as of October 28, 2002, the balance of KRW 10,000,000, intermediate payment of KRW 1,000,000, and the balance of KRW 420,000,000, the balance of KRW 420,000,000 and the detailed details of the sales amount of KRW 1,430,00,00,000, are inconsistent with the sales contract (Evidence 2-1) as of October 31, 202.

Third, although the transfer registration of ownership was already made on October 25, 2002 with respect to the bath of this case, and the above sales contract (Evidence A No. 2-1), despite the remainder payment and the transfer registration were entered as simultaneous performance, it is not easily acceptable to state the above statement of account statement that the remaining 65,000,000 won remains unpaid even after the transfer registration of ownership was made. Unlike the above sales contract (Evidence A-2-1), the plaintiff does not have any explanation about the remaining 65,00,000 won, unlike the above sales contract (Evidence A-2-1), it is not possible to confirm that the remaining 65,00,000 won was actually paid, and the remaining 65,00,000 won was not entered in the account number at 0,000,000 won in the above sales contract (the above 10,000 won account number at ○-○-○-○○-○○ and △△ Bank, and 16,000,0.0.

Fourth, if the sum of the down payment, intermediate payment, and remainder stated in the above statement of accounts is combined, KRW 1,425,00,000 (i.e., intermediate payment of KRW 10,350,000 + intermediate payment of KRW 1,350,000 + KRW 65,000,000 + the balance of KRW 1,430,000,000 claimed by the Plaintiff; and (ii) there is a difference in the purchase price of KRW 5,00,000 claimed by the Plaintiff; and (iii) the Plaintiff did not have any reasonable assertion and proof in relation thereto [the Plaintiff is asserting that it was deducted from the Plaintiff’s receipt of the deposited money, such as a restaurant, e.g., manure, and e., (iv) but it is difficult to acknowledge the Plaintiff’s assertion that the instant bathing was offered as security, in light of the fact that the Plaintiff did not have any other reasons to receive the above 3000,000,000 of the lease hall.

(3) As to the money paid to 10.13,00,00,00 won on September 13, 2002, 8,000,000, and 45,000,000 won on November 29, 2002, and 307,70,700,000 won were paid for 0.20,000,000,000 won were paid for 10,000,000,000 won was paid for 10,000,000,000,000 won was paid for 10,000,000,000 won was paid for 10,000,000,000 won was paid for 20,0000,000 won was paid for 10,0000,000 won was paid for 10,0000,000 won.

④ The Plaintiff asserted that the purchase price was KRW 1,430,00,000 at the time of the party principal examination, and that the evidence No. 2-1 of the Plaintiff was made genuine, but only stated to the effect that the details of the payment of the purchase price or the details of the preparation of each sales contract are not gathering or memory, and the ParkF, which is the spouse of ChoA, stated in the court of trial that the sale price of the bath of this case cannot be accurately memoryd at the time of testimony at the time of the party principal examination, but it only stated to the effect that it is inconsistent with the Plaintiff’s assertion. As such, it is difficult to believe the result of the party principal examination as is.

⑤ Meanwhile, it is difficult to believe that the Plaintiff’s actual transaction price at the time of acquiring the instant bath was excessively high compared to KRW 1,480,00,000, the Plaintiff’s sale price of the instant bath building or its land during the period of 2002, considering that there was a significant increase in the tax base of the instant bath building or the individual land price of the said land (246,657,039, the individual land price was KRW 654,000, but the tax base in 2012 was 431,646,026, the individual land price was 736,00,000, and the individual land price was 736,00,000, which was alleged as the actual transaction price at the time of the Plaintiff’s acquisition of the instant bath.

3) Where the actual transaction price of acquisition value is unclear, determination on legality of calculation of the conversion value

Article 114 (7) of the Income Tax Act provides that "transfer value" or "acquisition value may be determined based on the actual transaction value at the time of transfer, in cases where the actual transaction value at the time of transfer is not verifiable, the transfer value may be determined based on the conversion value, etc. Therefore, in cases where the transfer value based on the actual transaction value is obvious, while the acquisition value based on the actual transaction value cannot be confirmed based on the actual transaction value, the transfer income tax may be imposed on the basis of the conversion price only. Thus, this part of the plaintiff's assertion is without merit (On the other hand, according to Article 176-2 (3) of the Enforcement Decree of the Income Tax Act, the appraisal value shall be determined based on the appraisal value before and after conversion price, but the appraisal value shall be appraised by two or more appraisal corporations on the relevant assets (excluding stocks, etc.) within three months before and after the date of transfer or acquisition, and in cases of this case, the average appraisal value is deemed reliable (limited to those whose appraisal date is within three months before and after the date of transfer or acquisition date respectively).

3. Conclusion

If so, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance shall conclude this conclusion.

As such, the plaintiff's appeal is dismissed.