early 209west2378 ( December 28, 2009)

The disposition imposing capital gains tax on the standard market price is legitimate because the actual transfer value and the appraisal value cannot be confirmed.

In full view of the fact that it is difficult to view the actual transfer value as a sales contract because the content of acquiring the collateral security obligation is not specified at all, etc., a disposition imposing capital gains tax on the basis of the transfer value and acquisition value as the standard market price is legitimate because there is no appraisal value.

2010Gudan4684 Revocation of Disposition of Imposing capital gains tax

XX Kim

O Head of tax office

October 5, 2010

October 19, 2010

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 capital gains tax of KRW 215,491,040 against the Plaintiff on March 17, 2009 is revoked.

1. Details of the disposition;

A. On April 21, 2004, the Plaintiff acquired 34/100 shares of the instant real estate (hereinafter referred to as the “instant shares”) in lots with the maximum amount of E (33/100 shares) and 34/100 shares (hereinafter referred to as the “instant shares”) of DaD 701 and 801 (hereinafter referred to as “real estate in the instant case”) from the Daegu BB-gu CC, 1244 DD 701 and 801 (hereinafter referred to as “the instant real estate”). After that, the Plaintiff, the EE, and FF (hereinafter referred to as the “Plaintiff, etc.”) transferred each of the shares in the instant real estate to DaG on January 2, 2007; (b) around March 22, 2007, the Plaintiff, etc. transferred the instant real estate to Defendant side with the transfer value of the instant real estate at KRW 4 billion; and (c) the transfer value of the instant shares was not included in the transfer value.

C. On March 17, 2009, the Defendant issued the instant disposition to rectify and notify the Plaintiff of KRW 215,491,040, which calculated the transfer value of the instant share as the standard market price by calculating the transfer value of the instant share as KRW 1,391,07,720, the acquisition value as KRW 922,819,434, and necessary expenses as KRW 27,684,582, on the ground that the transfer value reported by the Plaintiff cannot be recognized as the actual transaction value, and there is no evidence to acknowledge the actual transfer value of the instant real estate, and thus it is impossible to recognize or confirm the actual transfer value.

[Ground of recognition] Evidence Nos. 9, Eul Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff et al. transferred the instant real estate to DaG for KRW 4 billion, which can be confirmed by the documents such as sales contract, receipt, etc. However, the instant disposition that the Defendant calculated capital gains tax by applying the standard market price on the grounds that the actual transfer value of the instant real estate cannot be confirmed.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) The Plaintiff, etc. acquired the instant real estate in KRW 3.2 billion and operated a bath in the entire real estate of this case, and agreed to sell all the instant real estate and bath bath business facilities to YG, and completed the registration of ownership transfer in the name of YG on January 2, 2007. However, as at the time of the transfer of the instant real estate, several lessees, such as Kim HH, the LaborJ, new KK, and LL, operated a store, restaurant, or sports marina room within the said bath.

(2) As of January 2, 2007, with respect to the instant real estate, the obligor is the largest EE or FF, and the maximum debt amount was each KRW 1.92 billion, and the mortgagee was each the National Agricultural Cooperative Federation. At that time, the principal amount of each of the instant collateral obligations remains 3.2 billion won.

(3) In addition, at the time of January 2, 2007, each provisional attachment registration in the name of DoDDD number (amount requested KRW 63,819,212) was made in the name of DoDD number on the grounds of delinquency in resident tax or environmental improvement charges with respect to the entire portion of the instant real estate or the portion of the Plaintiff, etc., on the grounds of delinquency in payment of resident tax or environmental improvement charges, and on the grounds of delinquency in management expenses, each provisional attachment registration in the name of DoDD number (amount requested to KRW 63,819,212), LL or new K,

"(4) On January 2, 2007, the approval certificate of December 18, 2006, which was submitted by the plaintiff, etc. in the process of completing the registration of transfer of ownership in the name of CoG, Ltd. (hereinafter "the sales contract of this case") is 4 billion won. Among the down payment, 80 million won shall be paid on the date of the contract and 3.2 billion won shall be paid on December 29, 2009, and it does not entirely state that MaGG takes over the above collateral security obligation and the repayment obligation of lease deposit related to the real estate of this case and does not substitute for the part of the purchase price." (5) The confirmation letter of September 2, 2009, prepared by UGG, purchased the real estate of this case 4 billion won from the plaintiff, etc., and 3.2 billion won shall be paid in lieu of the remainder of the collateral security obligation of this case from 1.2.5 billion won to 2.5 billion won from 2008.

(6) According to the business operator’s basic contents inquiry, it appears that the lessee of a bath in the instant real estate and the JJ from June 2004 to December 15, 2008 or from May 21, 2004 to May 21, 2008 operated a sports marina or store within the said bath. However, there is no evidence to prove that the transferee of the instant bath took over the obligation to return each lease deposit against the Plaintiff, etc. Kim H and the JJ with respect to the Plaintiff, etc.

(7) Meanwhile, after acquiring the instant real estate, the Plaintiff et al. paid 2.1 billion won or more to the construction cost while performing bathing facility construction. After acquiring the instant real estate, in the course of obtaining a loan from the Korea MMMM Savings Bank by using the instant real estate as collateral, the market price appraisal conducted by the individual appraiser was assessed as a total of KRW 6 billion. In addition, on January 12, 2007, the sum of the standard market price of the instant real estate as of January 12, 2007 exceeds KRW 4,173,013,000.

[Reasons for Recognition] Each entry in Gap evidence Nos. 2, 4, 6, 9, 11, 14, Eul evidence Nos. 3 and 4, Eul evidence Nos. 6, Eul evidence Nos. 9 and 11, and the purport of the whole pleadings

D. Determination

(1) According to Articles 100(1) and 114(7) of the former Income Tax Act (amended by Act No. 8825, Dec. 31, 2007; hereinafter the same) and Article 176-2(1) and (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008; hereinafter the same shall apply), where transfer margin of transferred assets is calculated based on the actual transaction value, there is no book, sales contract, receipt, or other documentary evidence necessary to confirm the actual transaction value at the time of transfer or acquisition, or where it is difficult to recognize or confirm the actual transaction value at the time of transfer or acquisition due to books or other documentary evidence because it is obvious that such books, sales contract, receipt, or other documentary evidence is false, the transfer value or acquisition value, appraisal value, conversion price (referring to the actual transaction value, sale price, or appraisal value converted by the method prescribed by Presidential Decree, and the acquisition value can be successively determined or corrected by applying the standard market price.

(2) Therefore, we examine whether the transfer of the instant real estate constitutes a case where the actual transfer value cannot be recognized or confirmed.

According to the above facts, in light of the circumstances that the transferee of YG does not expressly state the fact that the Plaintiff, etc. will take over the above collateral security obligation with respect to the payment method of the purchase price, which is one of the most important matters in the real estate sale and purchase contract of this case, it is difficult to view the sales and sale contract of this case as a true sales and sale contract consistent with the actual transaction relationship between the Plaintiff, etc. with the Plaintiff, etc. as to the real estate of this case. While the Plaintiff, etc., at the time of transfer of the real estate of this case, there were Lee LL, Hak, and Hak, which are the provisional attachment right holder of the real estate of this case, Kim H and Hak, as the lessee of the above bathing facilities of this case, but there were no significant evidence that the transfer price of the real estate of this case was 4 billion won in the real estate of this case, and it is difficult to acknowledge that the transfer price of the real estate of this case is below the standard market price of the Plaintiff, etc., and there is no other evidence to prove that the transfer price of the above real estate of this case.

Ultimately, the instant disposition that the Defendant calculated the transfer value and acquisition value of the instant real estate as the standard market price pursuant to Article 114 of the former Income Tax Act for the foregoing reasons is lawful.

3. Conclusion

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