Article 162 of the Enforcement Decree of Income Tax Act

2. The costs of appeal shall be borne by the Plaintiff.

The defendant's rejection disposition against the plaintiff on November 10, 2009 is revoked.

The following facts are acknowledged in full view of Gap evidence 1, Eul evidence 1 to 18, and evidence 19 (including paper numbers) and the testimony of Hong A witness at the trial of Hong A, the purport of the whole pleadings.

[1]

C. On July 23, 1987, the Plaintiff and thisB, the HongA, and thisCC entered into a contract to purchase the same 00-0 square meters and its ground buildings (hereinafter referred to as “the instant real property”) such as 00-0 square meters and 750 square meters, such as 00-0 square meters and 1,402 square meters in Bupyeong-gu, Incheon (hereinafter referred to as “instant sales contract”).

O The plaintiff and the above three persons completed their business registration with their trade name on November 5, 198, which was about one year and four months after the date of conclusion of the instant sales contract, and leased the instant real estate.

O The Plaintiff and the above three persons completed the registration of ownership transfer of each of their 4/1 shares on April 16, 1993, which was about five years and nine months after the date of conclusion of the instant sales contract.

[2]

O On June 25, 2008, the Plaintiff sold 1/4 shares of the instant real estate to O Co., Ltd.

O On August 31, 2008, the Plaintiff reported and paid the transfer income tax following the transfer of the instant real estate to the Defendant (hereinafter referred to as “the instant return and payment”).

O at the time of filing and paying the instant report, the Plaintiff reported and paid the transfer income tax accordingly on July 23, 1987, which was the date of entering into the instant sales contract. Such a report was made by GG on behalf of the Plaintiff by the tax accounting corporation.

O) On the other hand, HongA, among the three above three persons, sold their shares in the instant real estate, reported and paid the transfer income tax accordingly. The time of acquisition of the instant real estate as of July 23, 1987, which was the date of the conclusion of the instant sales contract, reported and paid the transfer income tax.

[3]

O) After that, on September 1, 2009, the Plaintiff requested the Defendant to correct the acquisition time of the instant real estate on April 16, 1993, which was the date of receipt of the ownership transfer registration, accordingly.

O As to this, the defendant's disposition refusing to correct the above reduction on November 10, 2009 (hereinafter "the disposition in this case").

O The reason for the disposition of this case is that the time of acquisition of the real estate of this case shall be July 23, 1987 when the sales contract of this case is a general sale and purchase. In the event that the sales contract of this case is a long-term installment sale, it shall be deemed that the date of receipt of registration, the delivery date, and the date of use and profit-making (the starting date of rental business) whichever comes earlier

2. The plaintiff's assertion

The instant sales contract was a general sale, and the Plaintiff, BB, HongA, and thisCC paid the down payment and the intermediate payment to the seller in installments, and the remainder was not a long-term installment.

However, since the Plaintiff is not in possession of the contract for the instant sales contract and the date of the settlement of the price and the balance payment agreement is not clear or confirmed, the acquisition time of the instant real estate shall be deemed as April 16, 1993, which is the date of receipt of the transfer of ownership registration.

Therefore, the transfer income tax should be reduced or corrected on April 16, 1993 by using the time of acquiring the real estate of this case as the date of registration receipt. Thus, the disposition of this case refusing such reduction or correction should be revoked.

3. Determination

A. Relevant statutes

[1]

(1) Article 162(1) of the Enforcement Decree of the Income Tax Act amended on December 31, 1994 provides that the date of acquisition shall be the date of settlement, in principle, and where the date of settlement is unclear, the date of a balance payment agreement entered in a sales contract: Provided, That where the date of a balance payment agreement is not verifiable, or where the period from the date of the balance payment agreement entered in a sales contract to the date of receipt of the registration exceeds one month, the date of receipt of the registration, where the registration was made before the settlement of the payment, or where the registration was made before the settlement of the payment, the date of receipt of the registration, and the date of first installment payment for the long-term installment condition,

(2) After that, Article 162(1) of the Enforcement Decree of the Income Tax Act amended on December 31, 199 provides that the above provision concerning the case of a long-term installment condition shall be revised and the date of receipt of ownership transfer registration, delivery date, and use and profit-making date, whichever comes earlier.

On the other hand, the Addenda of the above Enforcement Decree provides that the previous provision shall apply to the acquisition time that comes under the previous provision.

(3) After that amendment, Article 162(1) of the Enforcement Decree of the Income Tax Act, which was amended on December 31, 2001 and enforced on June 25, 2008 at the time of the transfer of the real estate of this case, stipulates that the above provision shall be amended to the extent that the date of settlement is unclear, and that the date of settlement shall be the date of receipt of registration if the date of settlement is unclear.

[2]

(1) Article 78(3) of the Enforcement Rule of the Income Tax Act amended on May 3, 1995 provides that with respect to the long-term installment term under the above Enforcement Decree of the Income Tax Act, the price of assets shall be paid in monthly, yearly, or by other installment payments, and subparagraph 1 provides that the transfer price of assets shall be paid in at least three installments, and subparagraph 2 provides that the transfer price of assets shall be paid in at least one year from the date following the first non-payment date, regardless of whether the transferred assets are transferred, and that the period from the first non-payment date to the last non-payment date shall be at least one year, and all of the requirements of subparagraphs 1 and 2

(2) After that, Article 78(3) of the Enforcement Rule of the Income Tax Act amended on May 7, 199 stipulated that the transfer price of assets shall be imported in two or more installments by amending Article 78(3) of the said Enforcement Rule.

(3) After that amendment, Article 78(3) of the Enforcement Rule of the Income Tax Act, which was amended on April 3, 2000 and enforced on June 25, 2008 and enforced on June 25, 2008, stipulated that Article 78(3) of the Enforcement Rule of the Income Tax Act was amended, and the period from the day following the date of receipt of ownership transfer registration, delivery date, or use and profit-making date of the transferred asset to the date of final payment

(b) General sales;

[1]

(1) As seen earlier, the Plaintiff asserts that the instant sales contract is not a long-term installment sale, but a general sale. In the case of a general sale, it is normal to deliver the subject matter of sale at the same time as the payment of the balance is made by dividing it into a down payment, an intermediate payment, and a balance, and to complete the registration of ownership transfer immediately after the payment of the balance.

(2) However, on July 23, 1987, the Plaintiff and this BB, HongA, and thisCC concluded a sales contract of this case to purchase the instant real estate with △△, and on November 5, 1988, approximately one year and four months thereafter, the Plaintiff and the said three persons run the instant real estate leasing business after completing their business registration, and on April 16, 1993, approximately five years and nine months after the date of the conclusion of the instant sales contract, the Plaintiff and the said three persons completed the registration of ownership transfer of each of the instant real estate.

(3) According to the above circumstances, the Plaintiff and the above three persons engaged in the business of leasing the instant real estate by taking over the instant real estate from the seller, △△, before paying the remainder of the instant real estate. It seems that the remainder on April 16, 1993, which was about five years and nine months after the date of conclusion of the instant sales contract, was paid and completed the registration of ownership transfer. It is difficult to view that the instant sales contract was a general sale as alleged by the Plaintiff.

[2]

(1) If the sales contract of this case was a general sale as alleged by the Plaintiff, the Plaintiff was able to report the acquisition time of the real estate of this case at the time of the instant declaration and payment as of August 31, 2008 pursuant to the Enforcement Decree of the Income Tax Act, or to report the date of settlement of the price, or to report the date of receipt of the registration of transfer of ownership in cases where the date of the balance payment agreement is not confirmed because it is not clear that the date of settlement is not a sales contract, or where the registration

(2) If the sales contract of this case was a general sale as alleged by the Plaintiff, the possibility was low that the date of the settlement of the price or the date of the balance payment agreement was made on February 23, 1987, which is the date of the conclusion of the sales contract, and the date of such settlement or the date of the balance payment agreement is likely to have been made on April 16, 1993, which is the date of receipt of the registration of transfer of ownership, or around that time. In addition, the possibility that the ownership transfer registration was made before the settlement of the price is low, and the date of receipt of the ownership transfer registration of the real estate of this case at the time of the report and payment of this case on August 31, 208 is apparent by the entry in the register

Therefore, at the time of the report and payment of this case, the plaintiff could have reported on April 16, 1993, which was the date of payment or the date of receipt of ownership transfer registration, as the time of acquisition.

(3) However, at the time of the instant report and payment on August 31, 2008, the Plaintiff did not report the time of acquisition of the instant real estate on the date of settlement of the price or the date of receipt of the registration of transfer of ownership, and reported on July 23, 1987, which was the date of conclusion of the instant transaction contract. This was that the tax accounting corporation provided that GG was acting for the Plaintiff.

On September 1, 2009, the Plaintiff filed a claim for the reduction or correction of the transfer income tax originally reported and paid based on the fact that the acquisition time of the instant real estate was not on July 23, 1987, but on April 16, 1993, the date of receipt of ownership transfer registration.

According to the above circumstances, even if the instant sales contract was a general sale as alleged by the Plaintiff, it is difficult to deem that there was a circumstance that the tax accounting corporation reported July 23, 1987, which was the date of concluding the instant sales contract on behalf of the Plaintiff, as the time of acquisition, to increase the burden of the Plaintiff on the capital gains tax.

(4) If so, reporting the time of acquisition of the instant real estate on July 23, 1987 at the time of the report and payment of the instant real estate would be difficult to conform with the fact that the instant sales contract was a general sale.

(b) Sale on a long-term installment basis;

[1]

(1) On the other hand, in the case of a long-term installment sale, it is normal to deliver the subject matter of sale to the buyer before full payment of the price and allow him to use and profit from it, and to complete the registration of ownership transfer immediately after the payment is paid in full.

(2) However, on July 23, 1987, the Plaintiff and this BB, HongA, and thisCC concluded a sales contract of this case to purchase the instant real estate with △△, and on November 5, 1988, approximately one year and four months thereafter, the Plaintiff and the said three persons run the instant real estate leasing business after completing their business registration, and on April 16, 1993, approximately five years and nine months after the date of the conclusion of the instant sales contract, the Plaintiff and the said three persons completed the registration of ownership transfer of each of the instant real estate on April 16, 1993. In addition, according to the Plaintiff’s assertion, the Plaintiff concluded the instant sales contract on July 23, 1987 and paid part payments around August 1987.

(3) According to the above circumstances, the Plaintiff and the third party, prior to the full payment of the price of the instant real estate, delivered the instant real estate to the Plaintiff and the third party on November 5, 1998, and made use and profit-making of the instant real estate. On the other hand, the Plaintiff and the third party paid the price of the instant real estate at least three times in installments as the down payment, intermediate payment, and balance, at least three times, the period of about five years and nine months between the initial payment and the final payment was required, and there is considerable room to regard the instant sales contract as a long-term installment sale under the Enforcement Decree of the Income Tax Act and the Enforcement Rule of the Income Tax Act.

[2]

(1) If the instant sales contract was a sale on a long-term installment basis, the Plaintiff could have reported the acquisition time of the instant real estate on August 31, 2008 pursuant to the Enforcement Decree of the Income Tax Act and the Enforcement Rule of the Income Tax Act at the time of the instant return and payment, the date of the first installment payment, the date of the first installment payment, or the date of the first installment payment if the registration of ownership transfer was made prior to the date of the first installment payment, or the date of the first installment payment, whichever was earlier.

(2) As seen earlier, prior to the full payment of the price of the instant real estate by the Plaintiff, BB, HongA, and thisCC, the seller, around November 5, 1998, transferred the instant real estate to the Plaintiff and the said third party for use and profit-making. Meanwhile, the Plaintiff and the said third party paid the instant real estate in at least three installments into the down payment, intermediate payment, and remainder, at least five years and nine months between the initial payment and the final payment. Furthermore, according to the Plaintiff’s assertion, the intermediate payment was paid around August 1987, and the Plaintiff and the said third party completed the registration of ownership transfer as to the instant real estate on April 16, 1993.

According to the above circumstances, in a case where the sales contract of this case was a long-term installment sale, the Plaintiff paid the down payment on July 23, 1987, which was the date of the conclusion of the sales contract of this case, to △△, a seller, and paid the down payment first installment on August 1, 1987, and used and profit from the real estate delivered around November 5, 198.

Therefore, if the sales contract of this case was a long-term installment sale, the first installment payment date can be deemed to be around August 1987, among the dates when the plaintiff could have reported as the time of acquisition of the real estate of this case, and the first installment payment date can be deemed to be around August 198, and the first installment payment date may be deemed to be around November 5, 198.

(3) However, on August 31, 2008, the Plaintiff reported the time of acquisition of the instant real estate on July 23, 1987, which was the date of entering into the instant sales contract, and on behalf of the tax accounting corporation GG, at the time of reporting.

As seen above, July 23, 1987, which was reported at the time of acquisition, was merely a difference between August 1987 and one month which can be seen as the first day of non-payment, and the acquisition time of the real estate in this case is made on July 23, 1987 or around August 1987, and there is no difference in the acquisition value due to the relation between the acquisition time of the real estate in this case and the acquisition value being made on July 23, 1987. Thus, even if the acquisition time of the real estate in this case is not made on August 1987 and made on July 23, 1987, the Plaintiff’s transfer income tax burden is not increased.

(4) If so, reporting the time of acquisition of the instant real estate at the time of the instant return and payment to July 23, 1987, which was the date of entering into the instant sales contract, is considerably consistent with the sales contract of this case as a long-term installment condition under the Enforcement Decree of the Income Tax Act and the Enforcement Rule of the Income Tax Act.

C. Plaintiff’s request for reduction and correction

(1) On August 31, 2008, the Plaintiff reported and paid the time of acquisition of the instant real estate on July 23, 1987, which was the date when the instant sales contract was concluded. On September 1, 2009, the Plaintiff asserted that the time of acquisition of the instant real estate was April 16, 1993, which was the date when the ownership transfer registration was received, and claimed for correction of reduction of capital gains tax reported and paid as above.

(2) According to the Framework Act on National Taxes and the Income Tax Act, the obligation to pay capital gains tax is finalized by a declaration, and when a request for the reduction or correction of capital gains tax is made on the grounds that the details of the report are erroneous, the person liable to bear the burden of proving that the details of the report are erroneous.

(3) However, according to the above, it is difficult to see that the sales contract of this case was a general sale as alleged by the Plaintiff, while reporting the time of acquisition on July 23, 1987 at the time of the report and payment of this case is difficult to conform with the fact that the sales contract of this case was a general sale. On the other hand, there is considerable room to see that the sales contract of this case was a long-term installment sale, and reporting the time of acquisition on July 23, 1987 at the time of the report and payment of this case is considerably consistent with the long-term installment sale.

(4) If so, it cannot be deemed that there was an error in the Plaintiff’s contents of the report and payment of the instant case, and there is no other evidence to acknowledge such an error, and thus, the instant disposition rejecting the request for reduction or correction of capital gains tax by asserting the error in such contents of the report cannot be deemed unlawful.

4. Conclusion

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case is dismissed as it is without merit, and the judgment of the court of first instance is justified as it is in conclusion, and it is so decided as per Disposition.