Cho High Court Decision 201Do0328 ( October 27, 2011)

Since a sales contract is deemed to have been prepared in the form of a sale contract, the disposition that considers the sales price as the actual transaction price is illegal.

If the punishment on the joint purchase of real estate and the transfer of only the registration by a single person in the name of the same person is deemed to have prepared a sales contract in a form to transfer the ownership of the land from the same person, and the actual transaction price of the land cannot be known, so the disposition that considers the sale price as the actual transaction price is

2011Gudan24104 Revocation of Disposition of Imposing capital gains tax

Park AA

Head of Sungbuk Tax Office

December 12, 2012

February 6, 2013

1. The Defendant’s imposition disposition of KRW 000 on December 3, 2010 against the Plaintiff on December 3, 2010 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of disposition;

가. 원고는 2002. 7. 8. 서울 성북구 OOO동 0가 000 지상 건축물(연와조 세멘와즙 평가건주택，건평 54.88㎡' 지하실 12.86㎡， 이하 '이 사건 건물')을 동생 박CC로부터 취득해 보유하다가 2008. 1. 21. 남DD에게 양도하고， 2008. 3. 13. 양도가액은 000원， 취득가액은 환산가액인 000원으로 해 양도소득세 과세표준 예정신고를 했다.

B. On December 3, 2010, the Defendant deemed that the Plaintiff acquired the instant building at KRW 000 in the process of the actual inspection of capital gains tax, and accordingly, issued the instant disposition to rectify and notify the Plaintiff of KRW 000 of the capital gains tax reverted to the year 2008 after the notice of tax assessment was served again.

C. The Plaintiff was subject to a prior trial procedure (the Tax Tribunal).

[Grounds for Recognition] The non-contentious facts, Gap evidence 1, 2, Eul evidence 1, and the whole purport of the pleading

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

"The plaintiff and ParkCC merely prepared a sales contract which causes 000 sales proceeds in the form of a form. It is not a content of the actual sales price, and the acquisition value of the building of this case must be calculated as the conversion price. Therefore, the prior disposition of this case on a different premise is unlawful. Even if acquisition value is deemed as alleged by the defendant, the necessary part is unlawful."

(b) Relevant statutes: To be listed in attached Form;

(c) recognised facts

(1) The Plaintiff and Dong GambCC collected money from the newspaper shop, etc. and purchased the instant building and its land (hereinafter collectively referred to as “the instant real estate”), and the Plaintiff owned the other State housing at the time, and the ParkCC registered the transfer of ownership in its own name on April 12, 2012.

(2) After acquiring the instant real estate, the Plaintiff and ParkCC accepted the instant house by taking into account KRW 000 of the construction cost around April 2002, and used the instant real estate under the name of ParkCC as collateral.

(3) When the cost of the instant building was scheduled to be re-developed, ParkCC moved the instant building to the Plaintiff in order to grant the Plaintiff the Plaintiff the qualification as a redevelopment partner, and the registration was made at a certified judicial scrivener office entrusted with the registration, which requires a real estate sales contract, and entered 000 won, which is an amount equivalent to 00 won of the standard market price at the time of the preparation of a sales contract in order to reduce the registration cost, as the sales price was the purchase price, and the registration of ownership transfer was not made on July 8, 2002 by the Plaintiff.

(4) Around January 2008, ParkCC sold the instant land at KRW 000, and the Plaintiff sold the instant housing at KRW 000 on January 2008.

[Ground of Recognition] Unsured Facts, Gap evidence Nos. 3 through 11, and the purport of the whole pleadings

D. Determination

Even in the case of a disposal document proved to be genuine, and in a case where there are reasonable grounds to believe that the document is contrary to the objective truth easy to be entered in the document, its probative value may be rejected (see, e.g., Supreme Court Decision 97Nu1195, Oct. 24, 1997). In full view of the circumstances shown in the above recognition, it is difficult to believe the entries in the real estate sales contract (No. 4-3) stated on the purchase price of the land in this case, and according to the evidence mentioned above, the Plaintiff and Dong GambCC, who purchased the real estate in this case and transferred it to the same household alone, is merely a case where the Plaintiff prepared a sales contract in form to acquire ownership of the land in this case from Dong GambCC and it is impossible to know the actual transaction price of the land in this case. Accordingly, the Defendant’s disposition that deemed the sale price of the land in this case as the actual transaction price under the sales contract is unlawful.

3. Conclusion

Since the disposition of this case should be revoked, the plaintiff's claim is accepted for reasons.