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(영문) 청구인이 쟁점가설건축물을 실질적으로 취득한 것으로 보아 취득세 등의 경정청구를 거부한 처분의 당부

조세심판원 조세심판 | 2017-12-29 | 조심2017지1146 | 지방

【Request Number】

[Request Number] Trial 2017No146 ( December 29, 2017)

[Items]

[C] Acquisition [Types of Determination]

[Summary of Decision]

[Judgment] In light of the fact that the ○○○○ decided to deliver the issue of temporary buildings to the applicant in a lawsuit filed by the applicant for the decision-making suit, it is reasonable to view that the applicant actually acquired the remainder after receiving a seller’s letter of renunciation from the seller and settling the accounts of the remainder of the temporary buildings. Therefore, the rejection of the claimant’s request for correction is not erroneous.

[Related Acts]

[Related Acts and subordinate statutes] Article 7 (2) of the Local Tax Act

【Disposition】

The appeal is dismissed.

【Reasoning】

1. Summary of disposition;

A. On April 8, 2015, the petitioner acquired 381 square meters in the place of a sales contract with an OOO, 35 square meters in the same Ri, 33 square meters in the same Rio field, 176 square meters in the same Rio site, 616 square meters in the same Rio site, 86.97 square meters in the same Rio site, and 154.38 square meters in a temporary building in an agricultural and fishing village and in a neighborhood living facility (hereinafter referred to as “sub-point real estate”), and paid acquisition tax, etc. on January 14, 2016.

B. On August 25, 2017, the claimant entered into a contract on the condition of removing 154.38 square meters of a temporary building among the key real estate (hereinafter “market temporary building”), as well as on the condition of filing a claim for correction by the date of filing a claim for correction, such as where theOO, who is an son of the seller, claimed ownership and possessed the ownership, and filed a claim for the refund of acquisition tax, etc. on the key temporary building, but the disposition agency rejected it on October 20, 2017.

C. The claimant appealed and filed an appeal on October 30, 2017.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

The claimant did not intend to acquire the core temporary buildings from the time of the initial sales contract, and the seller's children claimed ownership of the core temporary buildings and refused to withdraw, and the removal of such buildings is not possible. However, the seller's claim for compensation for the suspension of the remainder of the termination of the contract was made for the cancellation of the contract ( January 14, 2016) on the condition that the seller received a letter of waiver of the core temporary buildings from the seller, and without considering the acquisition of the core temporary buildings, the claimant considered the acquisition tax for the land outside of the farm house and paid it.

At the same time, a short-term lease contract (3 months) was concluded by the seller on the condition that the seller removes his/her children within one month and dismantles and removes them in order to guarantee the seller's relocation period and eviction performance of the OO's children, but the seller's children have not been removed even after three months have not elapsed, and the seller's children have been winning in the first and second trials and are still in progress by the Supreme Court.

The purpose of the Magdo lawsuit is not to claim the ownership of the main temporary structure, but to stop the illegal possession of the farming house and the land in the fence that has no legal right to do so. Therefore, the object of the Magdo lawsuit is not the seller but the seller's children, and the object of the Magdo lawsuit is not the seller but the seller's children.

However, the seller's OO submitted to the full bench a letter of confirmation that the actual owner of the at issue temporary structure did not purchase and sell his or her child, and as a result of questioning to the agency, the at issue temporary structure is not subject to sale, and since the seller, who is the owner, denies the sale, and did not receive the transfer agreement, which is the requirement of acquisition from the owner, the ownership cannot be changed, the at issue temporary structure was still the owner's ownership.

As the owner does not agree to the transfer by the seller as the owner, the seller can still use it by the retention deadline ( November 11, 2017). The claimant who is the landowner cannot exercise any right to the temporary buildings until the retention deadline expires. Therefore, it is unfair to impose acquisition tax, etc. on the claimant because the claimant cannot be deemed to have acquired the temporary buildings until the retention deadline expires.

(b) Opinions of disposition agencies;

"Acquisition" in Article 6 subparagraph 1 of the Local Tax Act is defined as original acquisition, acquisition by succession, or all other acquisitions with or without compensation by means of sale, exchange, inheritance, gift, contribution, investment in kind to a corporation, construction, repair, reclamation of public waters, creation of land through reclamation, and others similar thereto. Article 7 (2) of the same Act provides that acquisition of real estate, etc. shall be deemed to have been actually acquired upon acquisition even if it does not make a registration, registration, etc. under the relevant Acts and subordinate statutes, such as the Civil Act, the Motor Vehicle Management Act, the Construction Machinery Management Act, the Construction Machinery Management Act, the Aviation Act, the Aviation Act, the Ship Act, the Standing Timber Act, the Mining Industry Act, the Mining Industry Act, and the Fisheries Act, and Article 9 subparagraph 5 of the same Act provides that the owner or transferee of the relevant acquired article shall be imposed acquisition tax, respectively.

In the Supreme Court, acquisition tax is a kind of distribution tax, where the person who acquired goods based on the original form of transfer of goods and imposes the tax-bearing capacity recognition and imposition of the tax-bearing capacity, and thus, regardless of whether the purchaser acquired the actual ownership of the goods, the actual acquisition of the goods itself is subject to taxation regardless of whether the purchaser acquired the ownership of the goods substantially (Supreme Court Decision 98Du14228 delivered on December 8, 1998). A tax claim against the purchaser naturally arises due to the existence of a taxation requirement of the acquisition. On the other hand, after lawful acquisition, it cannot affect the exercise of the tax claim already established even if the contract is cancelled by agreement and the property is returned (Supreme Court Decision 95Nu7970 delivered on September 15, 1995). In addition, acquisition tax is a transfer of property, namely, an act that is imposed by the person who acquired the goods as a taxable object, and is not subject to taxation by the Constitutional Court Decision 2005HunBa564 delivered on May 26, 2005).

On January 14, 2016, the claimant reported and paid acquisition tax, etc. on the key real estate, including the key temporary buildings. On April 8, 2015, the seller's OO transferred all the rights of the relevant temporary building from the completion of a sales contract to the applicant, OO shall waive the rights of the relevant temporary building, and the applicant shall receive a written report on the transfer of the right to the temporary building and the waiver of the right to use and dispose of the building, and the registration procedure for the transfer of the ownership is completed. The key temporary building was constructed with the permission of 96.9mm2 from the disposal agency around March 2006 by OO, which was the seller, for the first class neighborhood living facilities and the building owner to whom the permission of large-scale repair of the building was granted on May 29, 2007, which was changed to 154.38m20m2, and the owner's claim for the removal of the building more than one year from the expiration date of the sale contract.

3. Hearing and determination

(a) Points in dispute;

The propriety of the disposition rejecting the request for correction of acquisition tax, etc. by considering that the claimant actually acquired the relevant temporary structure.

(b) Relevant Acts;

(1) Local Tax Act (wholly amended by Act No. 12954, Dec. 31, 2015)

Article 6 (Definitions) The definitions of terms used in acquisition tax shall be as follows:

1. The term "acquisition" means original acquisition (excluding acquisition under the conditions of taxation, such as acquisition by a ruling of expropriation), acquisition by succession, or all other acquisitions with or without compensation, such as sale, exchange, inheritance, donation, contribution, investment in kind to a corporation, construction, repair, reclamation of public waters, creation, etc. of land through reclamation, and any other acquisitions similar thereto;

(2) Real estate, etc. is deemed acquired when it is practically acquired even if it is not registered, registered, etc. under the related Acts and subordinate statutes, such as the Civil Act, the Motor Vehicle Management Act, the Construction Machinery Management Act, the Aviation Act, the Ship Act, the Standing Timber Act, the Mining Industry Act, and the Fisheries Act, and the owner or transferee of the relevant article shall be deemed an acquirer, respectively: Provided, That this shall apply only to acquisition by succession in cases of vehicles, machinery equipment, aircraft, and custom-built ships.

Article 9 (Non-Taxation) (5) No acquisition tax shall be imposed on the acquisition of temporary buildings, such as a temporary entertainment place, construction site office, etc. (excluding objects of taxation under Article 13 (5)): Provided, That acquisition tax shall be imposed if the duration exceeds one year.

Article 20 (Return and Payment) (1) Any person who acquires an object of taxation of acquisition tax shall file a return on, and pay the amount of tax calculated by applying the tax rates under Articles 11 through 15 to the tax base to such tax base within 60 days [referring to the last day of the month in which the date of commencing the inheritance falls, in cases of inheritance, and six months ( nine months, in cases where the taxpayer has his/her domicile in a foreign country) from the last day of the month in which the date of commencing the inheritance falls, and from the last day of the month in which the date of adjudication of disappearance falls, in cases of disappearance] from the date of acquisition (referring to the date of cancelling or reducing the designation of a permission or an area subject to permission, in cases where the transaction price has been fully paid

(2) The Framework Act on Local Taxes (wholly amended by Act No. 13635, Dec. 29, 2015)

(1) In any of the following cases, a person who has filed a tax base return under this Act or local tax-related Acts by the statutory deadline for filing a tax return may request the head of a local government to determine or correct the tax base and the amount of local tax (where a determination or correction is made pursuant to the Local Tax Act, referring to the tax base, the amount of tax, etc. after such determination or correction is made) of the first return or revised return within five years (where a determination or correction is made pursuant to the Local Tax Act, referring to within 90 days (limited to within five years after the statutory deadline for filing a tax return expires) from the date he/she becomes aware of such determination or correction (where he/she is notified of the determination or correction, referring to

1. Where the tax base and amount of tax recorded in the tax base return (referring to the tax base and amount of tax after determination or correction where such determination or correction is made pursuant to the Local Tax Act) exceed those to be reported under the Local Tax Act;

2. Where the amount of refundable tax recorded in the tax base return (referring to the amount of refundable tax after determination or correction where such determination or correction is made pursuant to the Local Tax Act) is less than the amount of refundable tax to be reported under the Local Tax Act.

(3) The head of a local government in receipt of a request for determination or correction pursuant to paragraphs (1) and (2) shall determine or correct the tax base and the amount of tax, or notify the person who has made the request that there is no reason to make any determination or correction within two months from the date of receipt of such request: Provided, That where the person who has made the request receives no notification within two months, he/she may file an objection, request for examination, or request for adjudgment pursuant to Chapter VII, or request for examination pursuant to the Board of Audit and Inspection

C. Facts and determination

(1) Review of the review materials submitted by the petitioner and the disposition agency reveals the following facts.

(A) The details of the instant real estate transactions, the details of the construction of the key temporary buildings, the progress of the lawsuit, etc. are as follows.

(B) The indication of real estate sales contract ( April 8, 2015) of the pertinent real estate is not indicated with a temporary structure at issue, but with a special agreement, it is said that it is sold under the present state of the facility, and the main contents appear as follows.

(C) The attached Form of a certificate of completion of a real estate transaction contract contains only 86.97 square meters in the existing house, and the key temporary buildings are not indicated, and the real estate sales contract for the key real estate prepared by a certified judicial scrivener does not include the key temporary buildings.

(D) The main content of the certification sent by the claimant to the seller on January 8, 2016 and January 12, 2016 is as follows.

(E) A permit for the construction, substantial repair, and alteration of the purpose of use (207 May 29, 2007) was issued by a seller as a second class neighborhood living facility (general restaurant) with a building permit for the main temporary structure, and the retention period is written on November 11, 2017.

(F) On January 13, 2016, the claimant made a lease contract for the seller's OO as the lessee and paid the OO on January 14, 2016 to the seller's OO on a three-month-based temporary structure. The seller of the real estate at issue ( January 14, 2016) is as follows:

(G) The content of the certificate of fact written by the OO of the seller of the pertinent real estate on January 16, 2017 is as follows. Moreover, since the content of the certificate of fact written by the OO was examined by children, the building was not sold, the building price of the building was omitted in the real estate sales contract, and the building price was omitted, and the remaining OO00 is affixed at the end of the cover, and the seal is affixed.

(h) According to the response to the inquiry related to a temporary building by a disposition agency ( August 16, 2017), the retention period for the key temporary building is until November 11, 2017, and if it is intended to extend the retention period of a temporary building, the owner of the building should submit an application for extension of the retention period of a temporary building by attaching a written consent to land use by the landowner 14 days before the retention period expires pursuant to Article 15-2(2) of the Building Act, and the landowner cannot file an application for extension of the retention period of a temporary building.

(E) The seller’s OOO’s father and the real estate agent’s OOO prepared a confirmation document as follows.

(j) The lawsuit filed by the claimant (Ulsan District Court Decision 2016Da11690, May 23, 2017) and the second instance court (2017Na22278). However, the OO appealed appealed on December 19, 2017, and the first instance court’s order and main contents are as follows.

(2) The claimant asserted against the agency’s answer as follows.

The claimant entered into a short-term lease contract (three months) in which the seller becomes the lessee after the termination of the sales contract, considering the following's director's retirement period at the seller's request, although the terms and conditions of the contract were agreed upon with the seller before the sales contract regarding the sale and purchase of the real estate at issue, the seller's children have a bad intent and claimed the ownership of the relevant temporary building with the seller's intention to compensate, and failed to withdraw at the seller's request.

However, unlike the seller's promise, the seller's children claimed their ownership and demanded compensation, and illegally occupied it. If their children withdraw according to the seller's promise, they dismantled a temporary building within the due date for payment of acquisition tax, and accordingly there was no need to pay acquisition tax related to the temporary building at all.

However, in the course of the lawsuit, the seller's OO's statement that the temporary structure is located with the costs and efforts of the child was submitted twice in the first instance, and the seller has consistently sold the temporary structure. During the appeal process, the seller's child who is the illegal occupant demanded compensation of the OO0 million won in order to transfer ownership.

The purpose of the claimant's lawsuit is not to claim ownership of the main temporary structure, but to occupy the whole of the farming house and land in the fence with doping the temporary structure for a long time and to leave the claimant's children demanding compensation for the temporary building. Therefore, the object of the lawsuit is not for the seller's OO & illegal occupant, but only for OO of them.

If the temporary structure at issue was sold to the applicant and the purpose of claiming ownership, the seller's OO must be included. However, he or she has no legal right to do so, he or she could not exercise his or her property right because he or she could not exercise his or her property right when he or she illegally occupies his or her personal property, farming house and entire land.

As a result of questioning about the ownership, etc. of the main temporary structure to the competent government office (OOO viewing construction), the main temporary structure is not deemed to have been actually transferred. For this purpose, the transfer of ownership of the temporary structure should be made through the official procedure of the seller's OO and the transfer agreement with the original owner. Since the seller's OO as the original owner does not consent thereto, he/she still received the answer that the ownership is still a seller's OO. In the viewing construction division, the buyer sent the official document demanding the extension of the retention period or the restoration of the temporary structure to the original owner's original owner's original owner's original state with the consent of the landowner in accordance with the expiration of the retention period ( November 11, 2017).

The claimant did not have to use the same issue of temporary structure as garbage since the sale and purchase contract of the real estate, so far, there was no room for the claimant to exercise his/her property right so far, and the seller and his/her children have used the legal fiction of the temporary structure to demand the applicant to pay unfair compensation (O00 million won) for a long-term illegal occupation.

Therefore, the claimant is not actually acquiring the temporary structure at issue, there is no intention to use it, and the owner or purchaser is not the owner of the temporary structure at issue, and there is no obligation to pay acquisition tax

(3) In full view of the above facts and relevant laws, the claimant asserts that he did not acquire the disputed temporary buildings from the time of the initial purchase and sale contract. However, the claimant and the OOO did not indicate the key temporary buildings on the list subject to sale and purchase under the sales contract of the disputed real estate prepared by the claimant and the OO, but is being traded on the basis of the special agreement and the present facilities. On January 8, 2016 and January 12, 2016, after sending the seller a certificate of request for the removal of the temporary buildings and the removal of the place of residence to the seller on January 14, 2016, the seller's OO prepared a written waiver of the key temporary buildings. The claimant prepared the seller's OO as the lessee on January 13, 2016, and prepared the seller's lease contract for the key temporary buildings for three-month period. In light of the fact that the real estate agent of the disputed real estate submitted the seller's rejection of the sales contract to the seller, it is reasonable to view the seller's rejection of the issue.

Therefore, it is judged that there is no error in the disposition that the disposition agency rejected the claimant's request for correction.

4. Conclusion

This case shall be decided as ordered in accordance with Article 96 (4) of the Framework Act on Local Taxes and Articles 81 and 65 (1) 2 of the Framework Act on National Taxes, since the petition for appeal is groundless as a result of the review.