Whether the acquisition value of the instant real estate is calculated lawfully

The disposition that calculated acquisition value excluding the amount actually not paid, although the Plaintiff issued a promissory note is legitimate.

Article 81 of the Income Tax Act

2016Gudan6143 Revocation of Disposition of Imposing capital gains tax

AA, B.B

The Director of Gangnam District Office

April 12, 2017

May 31, 2017

1. All of the plaintiffs' claims are dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of KRW 00,00,00 (including additional tax) for each 2015 year against the Plaintiffs on January 4, 2016 is revoked (the Plaintiff’s disposition date was specified in the complaint as January 18, 2016, but the date of the disposition is obviously specified as follows, and it is apparent that it is January 4, 2016, and thus, it shall be deemed as a clerical error due to mistake, and thus, it shall be corrected and stated as above).

1. Details of the disposition;

A. On September 15, 2014, the Plaintiffs entered into a real estate sales contract (hereinafter referred to as the “instant contract”) with the company (hereinafter referred to as the “instant company”) with respect to the share of 20,496/48,804 (hereinafter referred to as “instant land”) out of Gyeonggi-gun ECE EEF 000-0 land, 3.498 billion won, and the down payment of KRW 300 million on the date of the contract, the intermediate payment of KRW 700 million on September 22, 2014, and the intermediate payment of KRW 2.498 billion on the date of the contract, and the outstanding payment of the down payment to the company as of December 31, 2014, and each of the instant promissory notes issued KRW 7.49 billion on the same day, while paying the down payment to each of the instant companies as of December 31, 2014.

B. On September 16, 2014, the Plaintiffs received each ownership transfer registration with respect to one-half shares of each of the instant land from the instant company, and completed the registration of the establishment of a neighboring mortgage with respect to the Plaintiff Song-A and the maximum debt amount of KRW 3.198 million to the largestG.

C. However, on September 26, 2014, the largestG filed an application for the auction of real estate rent with the amount of credit KRW 700 million with respect to the instant land at the Jung-gu District Court. On March 30, 2015, the instant land was sold at KRW 744,400,000, the minimum sale price was KRW 744,800,000, on the first sale date.

D. On May 31, 2015, when filing a preliminary return on the tax base of capital gains tax on the Defendant, the Plaintiffs reported each transfer margin of KRW 372,050,000 with each transfer value as to each of the shares of 1/2 of the instant land as KRW 1.83,0970,000,000 and each of the acquisition values as KRW 1.45,8925,140,000,000.

E. However, on the premise that the actual purchase price of the instant land under the instant contract is KRW 300 million in the name of the down payment, the Defendant deemed each of the acquisition price reported by the Plaintiffs as KRW 23,1975,140,00, and on January 4, 2016, the Defendant determined and notified each of the instant dispositions (hereinafter referred to as “each of the instant dispositions”) of KRW 81,621,620, which belonged to the Plaintiffs in 2015.

F. On March 23, 2016, the Plaintiffs appealed to the Tax Tribunal for each of the instant dispositions, but the Tax Tribunal rendered a decision to dismiss each of the Plaintiffs’ respective appeals on June 29, 2016.

[Ground of recognition] No dispute, Gap evidence Nos. 1 through 3, Gap evidence No. 7, Eul evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiffs were to purchase the instant land, belonging to the largestG, a planning real estate business entity. The Plaintiffs were to pay KRW 300 million to the largestG, as well as to pay KRW 3198 million in total, which was issued as the intermediate payment of the purchase price of the instant land and the outstanding payment. As such, it is evident that the actual purchase price of the instant land is KRW 3.498 billion in total. Accordingly, each of the instant dispositions on different premise should be revoked as it is unlawful.

B. Determination

In full view of the following circumstances, it is reasonable to deem that the actual purchase price of the instant land under the instant contract is only KRW 300 million, and the Plaintiffs’ assertion is without merit, and each of the instant dispositions is lawful.

1) The sales price under the instant contract is at least KRW 130 times the officially announced price of the instant land at the time. Of the land in 2011 and 2012, KRW 661/48,804 or KRW 331/48,804, the purchase price of each of the instant land is at least two times the amount calculated by converting the purchase price of each person who acquired the instant land in a small quantity from a gold agent in 2011 and KRW 165-1, Pyeongtaek-gu, Pyeongtaek-gu, Seoul, into the size of a lot. In the voluntary auction procedure for the instant land, the minimum sale price is at least KRW 74,400,000 based on the presumption that the minimum sale price was at KRW 74,80,000,000 of the instant land was at least three times the appraised value of the instant land. However, in fact, the Plaintiffs purchased the instant land from the maximumGG to develop the instant land as a training site, and there was no administrative basis for the Plaintiffs to purchase the instant land from 07.

2) The Plaintiffs, while passing down only down with down payment, received each registration of ownership transfer with respect to one-half portion of each of the instant lands from the instant company, and set up a mortgage with maximum amount of 3.198 million won for the payment of intermediate payment and remainder. The instant company, which is planning real estate, completed the registration of ownership transfer without receiving the intermediate payment and remainder. The Plaintiffs, even if they issued each promissory note for the payment of intermediate payment and remainder, have completed the creation of a mortgage to secure the payment of the said payment. The instant contract party is the instant company, but the mortgagee is the maximumG individual, and the ordinary maximum debt amount is set at 120% of the actual debt amount, and the instant land is not clearly consistent with the maximum debt amount and the intermediate payment amount. However, the Plaintiffs did not explain to the purport that the Plaintiffs were easily entitled to receive the payment of each of the instant land prior to the completion of the registration of ownership transfer.

3) The payment date of a promissory note issued for the payment of KRW 700 million for the intermediate payment that was delivered at the time of the instant contract is written erroneous as of September 12, 2014, which was prior to the date of the instant contract, and is written by the addressee and the leastG individual, not the instant company, which is the party to the instant contract. The instant contract is a large amount of contract with the purchase price exceeding KRW 3.498 billion. As such, it is also difficult to accept that there is any clerical error in the formal entries of a promissory note having a very significant meaning in the method of payment, or any part different from the content of the

4) The largestG appears to have filed an application for voluntary auction of the instant land on the ground that the payment was not made after September 22, 2014, which was the date of the intermediate payment under the instant contract, from September 22, 2014, and the intermediate payment was not made four (4) days after the date of the intermediate payment. However, even without considering the situation that the Plaintiff Song and the largestG had been known to the Defendant on September 24, 2015 at the time of the investigation by the Defendant, Plaintiff Song and the largestG had already been in possession of promissory notes for the payment of the intermediate payment, and thus, it is unreasonable to view that Plaintiff Song had chosen the method of voluntary auction application without guaranteeing the certainty of the total amount of the claim.

5) On January 12, 2015, the Plaintiffs sold part of the buildings in Seoul HH II in KRW 3.1 billion. Around that time, the Plaintiffs reported and paid capital gains tax of KRW 629,633,000. If the acquisition value of the instant land is KRW 3.498 billion, the Plaintiffs can be deemed to have the benefits eligible for the full refund of capital gains tax. In fact, the Plaintiffs applied for the refund of capital gains tax already paid to the Defendant on April 21, 2015. Meanwhile, considering that the instant land was awarded at KRW 74,480,00 on the first sale date and was paid at KRW 3.4 billion on May 19, 2015, the Plaintiffs did not appear to have received the instant down payment from the Plaintiff’s maximum corporate tax and value-added tax of KRW 6493,279,000,000 from the standpoint of the company’s maximum acquisition value without reporting and paying the instant land.

6) 한편 원고들은 이 사건 토지에 대한 개발행위가 실제로 진척된 적이 있었다는 사실을 증명하는 취지에서 이 법원에 이 사건 토지의 공유자 중 1명인 김PP이 2015. 1. 8. 내용증명으로 발송한 공지사항통보서(갑 제8호증)를 제출하였으나, 그 공지사항통보서에는 모임의 장소로 '경기도 QQ시 RR구 SS동 00-0(최GG 댁)'이라고 기재되어 있는바, 2015. 1. 8. 무렵은 이미 최GG가 이 사건 토지에 대한 경매를 신청한 이후의 시점인데, 최GG의 집에서 이 사건 토지에 대한 개발행위를 논의하는 회의에 원고들이 참가요구를 받았다는 것도 역시 쉽사리 납득되지 아니한다. 또한 원고는 이 법정에 잔금지급을 위하여 발행된 약속어음이 시장에서 유통되고 있다는 사실을 증명하는 취지에서 액면금 24억 9,800만 원의 약속어음 후면 사본(갑 제6호증)을 제출하였는바, 그 약속어음 후면에는 최GG의 2015. 5. 15.자 배서가 기재되어 있는데, 원고들은 약속어음이 시장에서 유통되고 있다면서도 약속어음 후면 사본을 어떠한 경위로 입수하여 제출하였다는 것인지 설명을 하고 있지 아니하다.

7) While the Plaintiffs were to purchase the instant land from the largestG, and are liable for the payment of promissory notes up to KRW 00 million until the date of the conclusion of the instant pleadings, there is no criminal complaint or no lawsuit claiming compensation for civil damages against the maximumG.

3. Conclusion

Therefore, the plaintiffs' claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.