Seocho 208west 2595 ( October 27, 2008)

Simple exchange shall be presumed to have no actual transaction value, and at this time, the assets subject to the estimation shall be transferred.

The method of a simple exchange without the market value of transferred assets shall be applied by deeming that there is only the agreement of the intention of exchange and there is no indication of specific appraised value in the exchange contract, and that the actual transfer value cannot be confirmed. In this case, the assets subject to the estimation fall

The contents of the decision shall be the same as attached.

Article 96 (Transfer Price)

Article 100 (Calculation of Gains on Transfer)

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s disposition of imposition of capital gains tax of KRW 315,89,890 for the Plaintiff on May 20, 2008 shall be revoked.

1. Details of the disposition;

가. 원고는 1997. 6. 19. 서울 강남구 ★★동 666-26 지상 다가구주택(대지 246.8㎡ 건물 544㎡){이하, '이 사건 부동산'이라 한다}을 취득하여 보유하다가, 2005. 5. 31. 아버지 김☆☆ 소유의 서울 강남구 ★★동 663-24 지상 5층 건물(대지 371㎡, 건물 1,139.11㎡){이하, '이 사건 교환 부동산'이라 한다}에 관한 3/4 지분 중 1/3 지분(즉 3/12 지분)과 교환하였다.

B. On June 27, 2005, the Plaintiff paid the transfer value of the instant real estate at KRW 1,032,077,940 and the acquisition value at KRW 510,420,414 based on the standard market price. The Plaintiff paid the transfer income tax at KRW 134,527,960.

C. Thereafter, the Defendant recognized the actual transfer value of the instant real estate transaction examples as KRW 2,326,00,000, and recognized the acquisition value as KRW 564,332,939 based on the standard market price. On May 20, 2008, the Defendant issued the instant disposition that rendered the Plaintiff’s correction and notification of the transfer income tax amounting to KRW 489,484,670 pertaining to the portion reverted to the year 2005.

D. After that, the Defendant deemed that the transfer of the instant real estate constitutes a temporary transfer of two houses for one household. On July 8, 2009, the Defendant issued a disposition to reduce or correct the transfer income tax by reducing the amount of KRW 173,584,780 to the Plaintiff (as a result, on May 20, 2008, the transfer income tax of KRW 489,484,670 for the year 2005, which was corrected and notified by the instant disposition, was reduced to KRW 315,89,890).

[Ground of recognition] Evidence No. 1, 2, Evidence No. 1, Evidence No. 2-1, 2-2, purport of the entire pleading

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In the case of this case, the actual transfer value of the relevant asset, which serves as the basis for calculating the transfer income tax, cannot be deemed to exist as it does not result in a simple exchange of transaction, and in such a case, the application of the estimated survey method premised on the existence of the actual transfer value, should be excluded, and the transfer value should be calculated according to the standard market price, which is the principle of calculating the transfer value under Article 96(1) of the former Income Tax Act. However, the Defendant’s disposition in this case

(b) Fact of recognition;

(1) On June 19, 197, the Plaintiff: (a) donated the instant real estate from his father, Kim-won, the father, and completed the registration of ownership transfer on the same day; (b) on May 31, 2005, the Plaintiff simply exchanged 1/3 shares (i.e., 3/12 shares) out of 3/4 shares in the instant real estate exchange owned by the said real estate and the said Kim Kim-ri, and completed the registration of ownership transfer in the future of the said Kim-ri, the above date.

(2) Thereafter, on June 7, 2005, the above Kim Young-ri transferred the instant real estate to ○○ Co., Ltd. in KRW 2,326,00,000, and completed the registration of ownership transfer on July 12, 2005.

(3) After this, the defendant, who became aware of the transfer of the real estate in this case of the above Kim Do-dong, cannot confirm the transfer value in the designated area because the actual transfer value cannot be confirmed in the case of simple exchange in the case of simple exchange, according to the actual transaction value. Since the above Kim Do-dong acquired the above real estate within three months after the acquisition, the transfer value of the above real estate is recognized as transaction example and its actual transfer value is determined as 564,32,939 won based on the standard market price, and the acquisition value was recognized as 564,32,939 won. On May 20, 2008, the defendant issued the disposition of this case that additionally corrected and notified the transfer income tax of 489,484,670 won to the plaintiff for additional correction and notification for 205, and thereafter reduced the transfer value of the above real estate to the plaintiff on July 17, 2009 by considering the temporary transfer of 1 household of the above high-priced house.

(4) Meanwhile, Gangnam-gu Seoul, to which the instant real estate belongs, was designated as a designated area (housing speculation area) on April 30, 2003.

[Reasons for Recognition] Evidence Nos. 1 through 7 (including paper numbers), Evidence No. 1, the entire purport of pleading

C. Determination

(1) The transfer value of assets under Article 94 (1) 1 and 2 of the former Income Tax Act (amended by Act No. 7579 of July 13, 2005, hereinafter referred to as the “former Income Tax Act”) including lives, land, buildings, etc. shall be based on the standard market value at the time of the transfer of the assets in question: Provided, That in the case of transfer of real estate within the designated area (invested area), the transfer value shall be calculated based on the actual transaction value [Article 96 (1) 6-2 of the former Income Tax Act].

In addition, even if the transferor is required to report the actual transaction amount, if there is no evidentiary document such as a taxpayer's account book or it is impossible to recognize or confirm the actual transaction amount because it is obvious that it is false, the transfer value shall not be the actual transaction amount reported by the transferor, and if it is based on the appraisal value and the appraisal value, it shall be based on the standard market price if it is not verified by applying the method of estimation investigation (Article 114 (5) of the former Income Tax Act and Article 176-2 (1) and (3) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18903 of Jun. 30, 2005)).

Furthermore, the actual transfer value of the pertinent asset, which serves as the basis for calculating the transfer income tax, refers to the value that the transferor transfers the relevant asset at the time of the transaction and received as the price for the transaction, which is objectively recognized by the sales contract and other documentary evidence. Thus, if the transaction is an exchange, it shall be a value exchange based on the monetary value of the object, which is particularly a value of the object, and it shall be a case where the actual transfer value can be confirmed if it is accompanied by the settlement procedure for the difference in the appraisal value. However, in the case of a simple exchange not so, the actual transfer value may not be confirmed because the parties agree to exchange the object of exchange at the market price, and the specific appraised value is not indicated (see, e.g., Supreme Court Decision 2003Du14123, Mar. 26, 2

Therefore, in the case of simple exchange, the actual transfer value cannot be confirmed. Therefore, in the case of a simple exchange, it shall be based on the transaction example, appraisal value, and the standard market value if it is not confirmed.

(2) However, in the instant case, the Plaintiff exchanged the instant sub-property located in the designated area on May 31, 2005 with the 1/3 share (i.e. 3/12 share) of the 3/4 share in the exchange real property in this case owned by Kim Young-ri (i.e., the 3/12 share in the exchange real property), and barring special circumstances, the Plaintiff shall calculate the transfer value based on the actual transaction value and pay the transfer income tax. However, in the case of simple exchange that does not involve liquidation procedures on the difference in the appraisal value, as seen above, the actual transfer value cannot be confirmed. As such, the transfer value shall be calculated by applying the method of estimation according to the order of transaction example, appraisal value, and standard market price based on the instant real property. As seen earlier, since the above Kim Jong-ri, who acquired the instant real property through the exchange of the real property in this case, transferred the value to 2,326,000,000 won within three months from the time of such exchange, the transfer value shall be determined as the transaction example value of the above real property.

(3) In relation to the interpretation of Article 114(5) of the former Income Tax Act and Article 176-2(1) of the Enforcement Decree of the same Act, where there is a real transaction value, but there is no real transaction value, such as a taxpayer’s account book, etc. necessary for taxation, or where it is impossible to recognize or confirm the real transaction value due to any apparent falsity, the Plaintiff asserts to the effect that the above method of the real transaction value is excluded from application in cases where there is no real transaction value from the beginning, such as simple exchange. However, the actual transfer value of the pertinent asset, which serves as the basis for calculating the transfer income tax, refers to the value of the transferor’s transfer of the asset at the time of the transaction and received as the price by sales contract or other evidence, and thus, it is difficult to accept the real transaction value as a value exchange with the monetary value of the object, especially in cases of exchange, where there is no real transaction value, such as the market value of the object of exchange, and thus, it is difficult to exchange the real transaction value with 20.

Furthermore, even if it is possible for the plaintiff to apply the method of a simple exchange, it is applied only to cases where it is impossible to confirm the actual transaction price due to lack of evidential documents, such as taxpayer's account books, or where it is impossible to recognize or confirm the actual transaction price due to the apparent fact that the content of evidential documents is false. In the case of an exchange of real transaction price, the actual transaction price refers to the transaction price of assets acquired through the exchange rather than the transferor's assets. Therefore, the object of the evaluation of the estimation is the object of the transfer, but the object of the appraisal should be the object of the asset acquired through the exchange rather than the transferor's assets. However, it is difficult to conclude that the method of the estimation was introduced into the Enforcement Decree of the Income Tax Act by the method of ascertaining the actual transaction price of transferred assets where there is no real transaction price, such as the taxpayer's account book, or it is difficult to recognize or confirm the actual transaction price due to the fact that there is no real transaction price or the actual transaction price of transferred assets. Therefore, it is difficult to understand the purpose of the transfer value of the plaintiff's simple transfer.

(4) Accordingly, the defendant's disposition of this case in the preceding system is an appropriate law.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit.