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청구인이 건물신축공사중인 쟁점토지를 취득한 것으로 보아「조세특례제한법」제98조의3(미분양주택의 취득자에 대한 양도소득세의 과세특례)을 적용 배제하여 과세한 처분의 당부

조세심판원 조세심판 | 2014-02-17 | 조심2013중2476 | 양도

[Case Number]

[Case Number] Trial 2013 Middle 2476 (O2.18, 2014)

[Items]

[Items] Transfer [Form of Decision] Cancellation

[Summary of Decision]

[Determination] In August 2009, it is difficult to view that the pre-owner, who decided to pay the land at the price as the payment for the construction work, did not construct the new house on the land at issue; according to the aerial photography taken on September 2009, there is no trace of construction of the new building on the land at issue; the house at issue is a house for which the claimant commenced and obtained approval for use within the period of acquisition of the house unsold in lots ( February 12, 2009 and February 111, 2010); in light of the fact that the house at issue is subject to the special taxation of capital gains tax under Article 98-3 of the Act on Special Cases concerning Taxation.

[Related Acts]

[Related Acts] Article 98-3 of the Restriction of Special Taxation Act

【Disposition】

The disposition of imposition by the head of the OOO on September 26, 2012 by the 2011 applicant shall be revoked.

【Reasoning】

1. Summary of disposition;

A. On August 17, 201, the claimant transferred on August 17, 2011, and applied Article 98-3 of the Act on Special Cases concerning Taxation (Special Cases concerning the Acquisition of Houses Unsold in Lots) at the time of filing a preliminary return of capital gains tax on August 24, 201, the claimant filed an application for reduction or exemption of capital gains tax by applying the same Article of the Act on Special Cases concerning Taxation at the time of filing a preliminary return of capital gains tax on August 24, 201.

B. On September 26, 2012, the disposition authority issued a notice of correction and notification of the transfer income tax OOO for the claimant on September 26, 2012 by deeming that the key land that the claimant started to construct a new building does not meet the requirements for reduction and exemption of transfer income tax

C. The claimant appealed and filed an appeal on December 20, 2012 on May 13, 2013.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

The claimant entered into a contract to build a new house (the contract (the contract (the contract) in the vicinity of the disputed land (the contract prepared by the spouse's OOO of the claimant on August 30, 2009) with the owner Lee OOOO of the disputed land and entered into a new house construction contract (the contract) on August 31, 2009, and entered into a new house construction contract (the contract (the contractor's OOO; hereinafter the contract) on August 31, 2009.

(b) Opinions of disposition agencies;

The claimant acquired the key land on August 30, 2009 and claimed that the key real estate meets the requirements for reduction or exemption, or because it is unclear the date of settlement of the price for the key land acquired by the claimant through payment in kind, the time of acquisition of the key land should be seen as January 19, 2010, which is the date of receipt of registration; the claimant changed the construction participants on construction and construction report on January 8, 2010; the date of approval for use of the house (53-1, 53-10) that the claimant newly constructed the key land on a substitute on a substitute (53-1, 53-10) that the claimant acquired the key land on February 9, 2010; the key land sales contract (OO of the seller on December 21, 2009, the buyer as the claimant; hereinafter referred to as the "the outstanding land sales contract") after the claimant acquired it on December 21, 2009.

3. Hearing and determination

A. Key issue

The propriety of the disposition imposed by the claimant by excluding the application of Article 98-3 of the Act on Special Cases concerning Taxation (Special Taxation on Transfer Income Tax for the Purchasers of Houses Unsold in Lots) on the land at issue in the construction of a new building,

B. Facts and determination

(1) On August 17, 2011, the claimant transferred the key real estate and reported the transfer income tax by applying the provisions of Article 98-3 of the Act on Special Cases concerning Taxation, and the disposition agency imposed the transfer income tax on this case by deeming that the claimant acquired the key land under new construction (the starting date of construction: December 17, 2008), which is the ownership owner of the key land, while the former owner of the key land, should commence the construction during the acquisition period of the newly-built house ( February 12, 2009 through February 11, 201).

(2) According to the review data of the agency such as the Integrated Computer Network for National Taxes (TIS), the time of acquisition of real estate at issue of the claimant and the change in the building permit are as follows:

OOOOOOOOOO(OOOO,OOO)

(3) In fact, the claimant claims that the land at issue was acquired from EO on August 30, 2009 and newly built the key house (the starting date: August 31, 2009), and that the claimant submitted the issues ① contract, the issues ② contract, the contract, the account transaction document, the account transaction document, and the aerial photography related to the acquisition of the land at issue and the new construction of the key house. Therefore, this is examined.

(A) According to the key ① contract, the contract date is August 30, 2009.8.30, it is difficult to conclude that, while entering into a contract for each of 30 square meters of housing construction works to OOOO, OOO is subcontracted to OOO, the payment of construction cost is made in lieu of real estate (OO site) and the construction cost (OO won is paid separately.

(B) According to the contract concluded on August 31, 2009 between EOOO, beneficiary OO, and OOOOOO and the contract concluded on August 31, 2009, it appears that the 13th of supply value of the OOOO-O, O-O, O-O, O-O's site rearrangement and civil engineering, O-O-O's building site rearrangement and civil engineering, and wood-prefabricated type studio housing construction, the OO-O's 13th of supply value.

(C) On August 31, 2009, the claimant submitted a letter of confirmation to two other than this Chapter: (a) the claimant sent the down payment OOO on August 31, 2009, and the remainder OOOO on August 21, 201 to the account of EOO, the beneficiary; and (b) the fact that the house was newly built from B from 2009.

(d) According to the aerial photography (2008 to 2010), the aerial photography (2008 to 2010) is identified as the key house in the aerial photography (2010), but the aerial photography taken in 2008 and 2009 (the film date: September 19, 2009) has not been identified as the trace of construction works, etc. on the disputed land.

(4) On December 12, 2012, 2012, the agency made an inquiry about the details of transactions to EOO, the owner of the land prior to the issue, and on December 28, 2012, EOO did not have entered into a contract, such as the contract, but OO entered into an agreement with the subcontractor (OO) to construct a building at the expense of OOO on the land at issue received in return for the construction cost after the date of the contract for OO construction (1) (209.8.30). It appears that the title of the ownership of the land at issue was the name of EOO, and thus the owner of the land at issue was in the form of EO and affixed the seal of EOO.

(5) Article 98-3(1) of the Restriction of Special Taxation Act (Special Taxation for Capital Gains Tax on the Purchasers of Houses Unsold in Lots) provides that where a resident has concluded a sales contract for the first time with a business entity who supplies houses unsold in lots located in an area outside Seoul Special Metropolitan City during the period from February 12, 2009 to February 11, 2010 (including cases where a sales contract is concluded and a down payment is made no later than February 11, 2010) and acquired such houses (including cases where a sales contract is made and a down payment is made no later than February 11, 2010), the tax amount equivalent to 10/100 of the capital gains tax on the income accruing from the transfer within five years from the date of acquisition shall be reduced and exempted, and that paragraph (2) includes a newly-built house built by him, which commenced construction and obtained approval for use from February 12, 200

(6) In light of the opinion that the claimant acquired the key land that started to construct a new building and the real estate does not meet the requirements for capital gains tax reduction or exemption, or that the agency concluded a building construction contract on the land adjacent to the key land (53-1, 53-10) on August 30, 2009 between the claimant's husband's OOOOO and OOOOO on the land adjacent to the key land and decided that the land should be paid in kind as construction cost, it is difficult for OOO to view that the contractor had constructed a new building on the land scheduled to pay in kind after the above contract. However, it is reasonable to view that the contractor was an OO on August 31, 2009 in the new house construction contract, but the owner on the key land registry stated it in accordance with the OOO, the beneficiary's OO and OOO, the beneficiary's son's son's son's son's son's son.

Therefore, since the housing at issue falls under the housing that the applicant has commenced and obtained approval for use within the acquisition period of the housing unsold in lots (2.12. 12. 2009 and 11. 201. 201. 201. 201. 201. 201. 3. 201.

4. Conclusion

This case shall be decided as ordered in accordance with Article 81 and Article 65 (1) 3 of the Framework Act on National Taxes because the petition for the trial results is well-grounded.