건축법에 따라 건축허가를 받아 진행된 것은 유상양도에 해당함.[국승]
Seoul Administrative Court 2016Gudan5912 (2017.03)
Those that are conducted with a building permit granted pursuant to the Building Act shall fall under a transfer at a cost.
(The same as the judgment of the court of first instance) Those that are not based on the Urban Development Act, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, etc., but carried out with construction permission under the Building Act
Article 88 (Definition of Transfer)
2017Nu38395 Revocation of Disposition of Imposing capital gains tax
AA
The director of the tax office
on October 23, 2017
on 13, 2017
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The judgment of the first instance shall be revoked. The transfer income tax reverted to the Plaintiff for the year 2011, which the Defendant rendered on June 1, 2015.
65,625,800 won shall be revoked.
1. Quotation of judgment of the first instance;
The reasoning for the judgment of the court in this case is as stated in the reasoning for the judgment of the court of first instance except for the following parts, and thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure
○ At the bottom of the 10th judgment of the first instance court, the following shall be added:
In other words, the Plaintiff’s payment of only the difference between the sale price and the sale price is for the convenience of settlement, and it is premised on the payment of the value of the shares in this case and the value of the unit sale apartment of this case. Thus, it cannot be deemed that there was no transaction as to the site value of the unit sale apartment of this case, which corresponds to the site value of the unit sale of this case among the shares in this case,
○ At the bottom of the 11th judgment of the first instance, the following shall be added:
(2) In the case of the trust registration of this case, the trust registration of this case did not settle the price for the shares of this case at all, since the Plaintiff purchased the unit apartment of this case, and the apartment of this case was completed and the apartment of this case was registered in accordance with the sale contract.
○ At the bottom of the 11th judgment of the first instance court, the following shall be added:
In addition, in general, a land owner is entrusted with a real estate trust company, and a real estate trust company conducts an appropriate development act, such as constructing a building on the land trusted as a trustee or creating a housing site, and then jointly sell or lease the land and a ground building to the purport that the trust company collects the input cost of the trust company from the revenue and deliver the profit to the beneficiary, shall be deemed as a trust contract under the Trust Act. Unless otherwise expressly agreed, a contract between the land owner and the real estate trust company shall not be deemed as a partnership contract between the land owner and the real estate trust company (see Supreme Court Decision 2004Da24557, Jun. 9, 2006). Therefore, the Plaintiff’s assertion that the transfer date should be deemed as the time when the trust registration was made is without merit.
2. Conclusion
Therefore, the judgment of the first instance court is justifiable, and the plaintiff's appeal is dismissed as it is without merit.