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(영문) 청구인이 부동산을 개인에게 양도한 것인지 아니면 법인에게 양도한 것인지 여부(기각)

조세심판원 조세심판 | 1990-06-21 | 국심1990중0571 | 양도

[Case Number]

National High Court 1990J0571 (O6.21, 1990)

[Items]

Transfer

[Types of Decision]

Dismissal

[Summary of Decision]

The claimant's view that the actual purchaser of the land knew that it is a corporation shall be based on the general social norms.In this case, the disposition agency's disposal of the transfer of land shall be based on the standard market price converted into the actual transaction price and the tax base is calculated pursuant to the provisions of Article 7 (2), Article 23 (4) and Article 45 (1) 1 of the Income Tax Act, Article 170 (4) 1 of the Enforcement Decree of the same Act, and Article 14 (2) of the Framework Act on National Taxes, and the initial disposition imposing the transfer income tax

[Related Acts]

Article 23 of the Income Tax Act

【Disposition】

I dismiss the appeal.

【Reasoning】

1. Facts;

With respect to the fact that the claimant transferred the 1,983 square meters of OOO OO OO forest (hereinafter referred to as "sub-owned land") to the 89.28 on December 18, 89, the disposition authority imposed capital gains tax of 89.12.18, the claimant imposed capital gains tax of 4,006,860 won and 801,370 won for the tax year of 89, and the claimant filed a request for a trial on March 23, 90.6, the claimant appealed against this.

2. Request;

Although the claimant acquired the 70.3.31 and transferred the ownership to the OOO other than the claim that is an individual person after transferring the 89.2.10, the claimant argues that the disposal agency's real estate acquisition fund is funds of the OO high-speed corporation (OOOOOOOOOOOOOO in the city, Dong, Dong, Dong, and Dong) and that the claimant directly transferred the OO high-speed land to the corporation on the ground that the actual owner of the OO high-speed corporation directly transfers the OO, the transfer price is the actual transaction price, and the acquisition price is the price calculated by converting the transfer value into the standard market price under the Local Tax Act.

3. Opinions of the Commissioner of the National Tax Service;

In calculating gains on transfer of a resident, Article 23 (4) and Article 45 (1) 1 of the Income Tax Act provides that the calculation of the acquisition value and the transfer value shall be the standard market price at the time of acquisition or transfer of the relevant asset: Provided, That where determined by the Presidential Decree, it shall be the actual transaction price at the time of acquisition or transfer of the relevant asset, and Article 170 (4) of the Enforcement Decree of the same Act provides that the case falling under any of the following subparagraphs shall be the case under Articles 23 (4) (proviso) and 45 (1) 1 (proviso) of the Act, and Article 170 (1) (proviso) of the Enforcement Decree of the same Act provides that the actual transaction price at the time of transfer or acquisition shall be confirmed in transactions with the State, local governments, or other corporations.

In addition, according to this case's taxation-related documents, such as a copy of the register of the disputed land, a real estate sales contract and a certificate issued by the Board of Audit and Inspection (OOO's representative director 89.6.28) presented by the claimant, the process of the claimant's transfer of the controversial land is as follows: between 86.4.10-6.29.6.29, 86.29, OOO's 23,702 square meters and 302 lots (153 lots of forest land 2,659,243 square meters, 123 square meters, 175,645 square meters, and 277 lots of land 52,641 square meters, and 2,041 square meters at the time of acquisition of the land at 84,070 square meters, it is difficult to accept the fact that the claimant's OOO's 23,700 square meters and 302 lots of land from the applicant's 9864 meters of land.4 meters of the land.

Therefore, there is a opinion that the disposition imposed by the disposal agency on the transaction between the corporation and the corporation by ascertaining the fact that the actual purchaser of the disputed land is listed in the corporation.

4. Issues

The issue is whether the claimant has transferred the real estate to an individual or transferred it to the corporation.

5. Hearing and determination

First of all, according to the relevant legal provisions, the transfer value and acquisition value under Articles 23(4) and 45(1)1 of the Income Tax Act shall be based on the standard market price at the time of transfer or acquisition, but in cases prescribed by the Presidential Decree, it shall be based on the actual transaction price, and in cases prescribed by the Presidential Decree, Article 170(4)1 of the Enforcement Decree of the Income Tax Act provides that "where the actual transaction price at the time of transfer or acquisition is confirmed in transactions with the State, local governments, or other corporations" shall be "where the actual transaction price at the time of transfer or acquisition has been confirmed in connection with transactions with the State, local governments, or other corporations," and it can be known that the transaction partner is

In addition, Article 14 (2) of the Framework Act on National Taxes and Article 7 (2) of the Income Tax Act provide that "the provisions on the calculation of tax base in tax-related Acts shall apply according to the substance, notwithstanding the name or form of income, profit, property, act or transaction," and the decision on transfer margin should be made by considering who is the actual counterpart of the transaction, regardless of whether the party to the transaction on real estate is a corporation or individual.

Next, considering the circumstances leading up to this taxation:

In the real estate register, the claimant acquired the disputed land 70.3.31 and transferred it to OOO (SOOOO of Gangnam-gu Seoul Metropolitan Government residing in OOOOOOOOOO of Gangnam-gu Seoul Metropolitan Government, and who is in office as director of OOO branch of the corporation). However, the actual owner of the disputed land is revealed by the audit and inspection by the Board of Audit and Inspection, the actual owner of the disputed land is found to have directly transferred the disputed land to OO of the corporation corporation, the claimant is deemed to have directly transferred the land to OO of the corporation, and the transfer value is 27,00,000,000, the actual transaction value is 2,792,465, which is the value converted from the market value of the taxation standard amount under the Local Tax Act, and the acquisition value is 2,792,465,000 won.

In this regard, the claimant asserts that the other party to the transaction was aware of the fact that it was an O-high speed corporation, and that the purchaser was an O-O, and that it presented a real estate sales contract and a copy of the real estate register that the purchaser was an O-O, but the O-high speed corporation was found to have purchased approximately 2,87,529 square meters of neighboring land including the controversial land for the construction of golf courses for three years from 86.4.10 to 89.6.29, by the audit and inspection by the Board of Audit and Inspection;

First, in this case, the claimant who is residing in the vicinity of the disputed land was aware of the purchase of land in large quantity by OO high-speed corporation;

Second, the average value of neighboring land transferred to OO high-speed in 86 years is about 8,00 won (cases: 86.4.12, 86. OOOO 1,334 square meters) while the transfer value of the controversial land is a large amount of 45,00 won per square year, which can be deemed to have been traded at a higher price since the claimant knew that the actual purchaser is a corporation.

Third, the OOO, the buyer of the real estate injury, stated in the reply to the fact-finding inquiry that “the claimant, according to the law at the time of the contract, transfers the transfer income tax to the corporation, shall not be a corporate transaction but shall prepare a contract under his/her own name on the ground that the transfer income tax is excessive, and shall complete the first registration of transfer of the ownership.”

In full view of the above facts, the claimant's view that the actual purchaser of the pertinent land knew that it was a legal entity is based on the general social norms.

In this case, under Articles 7 (2), 23 (4) and 45 (1) 1 of the Income Tax Act, Article 170 (4) 1 of the Enforcement Decree of the same Act, and Article 14 (2) of the Framework Act on National Taxes, the transfer value shall be calculated based on the standard market price converted into the actual transaction price and the tax base is calculated, and the initial disposition against which the transfer income tax, etc. is imposed is just and the claimant's assertion is not reasonable.

6. Conclusion

As a result of the review of the appeal, the claimant's assertion is groundless, the decision is made in accordance with the provisions of Article 81 and Article 65 (1) 2 of the Framework Act on National Taxes.