조세심판원 조세심판 | 1996-07-17 | 국심1996서1206 | 양도
National High Court 1996No1206 ( July 18, 1996)
In the case of calculating the transfer value of the right to a site at issue, the disposition imposed by applying the revised officially announced price without applying the original officially announced price shall be deemed to be erroneous.
Article 27 of the Income Tax Act: Time of Transfer or Acquisition of / Necessary expenses for assets transferred under Article 94 of the Enforcement Decree of the Income Tax Act
1. It shall revert to 94 years, the director of the tax office determines and notifies the claimant of the decision of October 16, 95; and
disposition of capital gains tax of KRW 59,59,650, among these real estate subject to taxation
In the calculation of the transfer value of a site (the right) the re-Adjustment of Sep. 18, 93
The Si land price shall be applied, and the tax base and amount shall be corrected.
2. The remaining claims are dismissed;
1. Summary of the original disposition;
The claimant filed a registration of ownership transfer in the name of 83.6.24, the above OOOOO-dong OOOOOO-dong 9,543 square meters, 16,800 square meters, OOOO-dong OOOO-dong 35,008 square meters, 32 Dong 130 square meters (31.04 square meters, 26.42 square meters, 26.42 square meters), and 32 230 square meters (28.5 square meters, 24.2 square meters: hereinafter the above 2 commercial buildings are referred to as "point of dispute") and transferred on March 24, 94.
The disposition agency considered the acquisition date of the right to a site as 79.6.19 on the date of purchase of the site by the OOO machine, machine and construction association, and determined and notified the applicant of the acquisition date of a building as 81.12.3 on October 16, 95 and the transfer income tax of 59,559,650 won for the transfer income tax of 94 years belonging to the completion date.
On December 8, 95, the claimant filed a request for trial on April 12, 96 through a request for review on January 29, 96.
2. Opinions of the applicant and the Commissioner of the National Tax Service;
1) The key issue price is to newly construct a commercial building by organizing a trade association and to consider the time of acquisition of the key price (right to site and store) as the date on which the trade association purchased the site as 79.6.19 the date on which the trade association purchased the site was confused with the subject of the purchase; and
Although the claimant paid the land price and construction cost to the union separately, since the date of acquisition by the above union is not the date the claimant settled the balance of the issue price, it is not the time of acquiring the right to a site. The members of the building section consisting of 853 persons and reported the acquisition date of the right to a site to December 10, 81 when reporting the transfer income tax, etc. on the transfer of the related price close to 15 years, and the tax authority has recognized the investigation and decision thereon. Therefore, the acquisition date of the right to a site should be deemed to be the date of completion, and the acquisition date of a building (store) shall be deemed to be the date of temporary use permission, which is the date of completion inspection, 81.3.23, which is the date of actual completion.
Even if the acquisition date is deemed to be June 19, 79.6.19, the part equivalent to the right to a site of the claimant among the land donated as a road site to Seoul Metropolitan Government should be added to the acquisition value and taxed again.
2) Any disposition that is imposed as the previous officially announced value without applying the land price adjusted downward after the date of preliminary return is inappropriate.
(b) Opinions of the Commissioner of the National Tax Service;
1) The claimant asserts that the disposition agency’s acquisition time of the key land is improper to regard the 79.6.19 of the date on which it purchased the site for the project of constructing commercial buildings by the OO machine and tools association as the time of acquisition;
In a case where the above association acquired a building site as a construction site for the purpose building, but completed a registration under the name of the head of the association for convenience and completed a registration of shares in the name of each partner, the association is deemed to have been entrusted with the relevant land (as the cause of the registration is appearing in the registry at the time of the cancellation of the title trust in the future, and as the reason of the registration of shares in the name of the claimant is appearing in the registry at the time of the registration of shares in the future, the purchase of the building site for the purpose of the construction agency business for commercial buildings by the OO machine Section was made by being entrusted with the name of the partner, including the claimant.
In fact, the time of acquisition of title trust real estate is the time when the person who is entrusted with the title of the asset first acquires the asset (dong area: National Tax Service's re-date 01254-57, 93 January 9), so the disposition agency should not be erroneous to regard the time of acquisition of the key land as the time of acquisition of the original purchase (the date of registration of ownership transfer) by the OOO machine and construction association for the purpose of the commercial building agency business.
2) The arguments in the time of acquisition of a building, the preliminary claim and 2) are not presented with a new argument at the time of request for a trial.
3. Hearing and determination
A. The dispute over the instant request for a trial lies in: (i) when the time of acquisition of a newly-established key price by organizing a trade association ought to be considered as the time of acquisition; and (ii) whether the value of the land donated to a local government in relation to the construction may be considered as necessary expenses in the event that the new issue is determined as the preliminary CheongO standard market price; and (iii) whether the land price adjusted
(b) Related statutes;
1) Article 27 of the Income Tax Act at the time of transfer and Article 53(1) of the Enforcement Decree of the same Act provide that the time of acquisition (transfer) shall, in principle, be the date of liquidation of the price of the assets concerned.
2) In calculating gains on transfer under Article 45(1)1 of the Income Tax Act and Article 94(5) of the Enforcement Decree of the same Act, necessary expenses shall be calculated by adding 7/100 of the tax base amount of the registration tax at the time of the acquisition to the standard market price at the time of its acquisition.
C. Facts and determination
1) The key issue is the time of acquiring the right to a site
A) The claimant, as a member of an OOO machine and construction section partnership, as a voluntary organization, newly constructed a commercial building on the ground by acquiring the entire land related to the site ownership of the main issue in the name of the association on June 19, 79 (approval of partial provisional use: 81.3.23; 81.3; 81.2.3; 81.2.8). The claimant used the issue at issue and used it, and completed 83.7.18 (Cause title trust termination: 81.10.10) in the name of the claimant for the registration of ownership transfer at issue.
B) Examining the taxation details at the time of the construction of the machinery section shop shop and distributing the same to partners, it is confirmed that the issue price, etc. allocated to partners is not subject to the assessment of the value-added tax and the global income tax, and it is not subject to the assessment of the value-added tax and the global income tax. It is confirmed that only the portion which was newly constructed and sold at the same time, along with the members' shop price, is a resident under the Income Tax Act, and that the value-added tax and the global income tax were imposed
C) In a case where a trade association was established to build a new collective shop, etc. and a site was acquired and registered in the name of the head of the trade association for convenience, but the commercial building was completed and then a share registration was made in the name of each member, the trade association (the head) will be deemed to have terminated the title trust if the land was registered under title trust. This issue is confirmed by a certified copy, etc. that the cause of the title trust registration of the site ownership is also the cause of the title trust cancellation.
D) Thus, the acquisition time of a right to a site at issue at issue is 79.6.19, which is the date the members acquired under the name of an OO machine, construction section, etc. (the remaining date of liquidation) and the initial disposition was not erroneous.
2) The point at issue is the time of acquisition of a building
As in the facts and judgment of the above 1), the issue of this case is deemed to have been trusted to the partnership upon acquisition, and the time of acquisition of the building at issue is the date when the commercial building is completed (the date of completion in fact). It is confirmed in the approval form of the head of the OOO's letter that the approval date of use is 81.3.23 for part of the OOO machinery machinery shop (27 Dong, 6 Dong, 2 Dong, 2 Dong), but the issue portion is not approved, and it is confirmed that the completion inspection was completed on December 3, 81, and that the completion date of the building was the date of completion, and therefore, the initial disposition at issue was not erroneous at the time of acquisition of the building at issue.
3) Acknowledgement of necessary expenses for land donated as road land
As the OOO machine-related association newly constructed a commercial building and donated 6,892.8m2 to Seoul Special Metropolitan City on April 81, 81, an amount equivalent to the right to a site ownership share of the claimant among the land donated above, the claimant asserts that the value equivalent to the right to a site ownership share of the above-mentioned land should be recognized as necessary expenses. However, in calculating gains on transfer according to the standard market price under related Acts and subordinate statutes, the necessary expenses shall be the amount calculated by adding the amount equivalent to the standard market price under the Local Tax Act at the time of the acquisition x 7/100 to the standard market price at the time of the acquisition x the amount equivalent to the standard market price at the time of the acquisition x 7/100, in spite of the actual transaction price, installation and improvement
(iv)tax where the officially assessed individual land price has been adjusted;
A) In a case where the officially assessed individual land price has been adjusted, its effect will take effect retroactively from the date of the initial public notice, and even if the officially assessed individual land price was adjusted, the original disposition should be corrected accordingly. In this case, where the return and payment on gains from transfer was implemented within the deadline for the final return, and where the officially assessed individual land price was adjusted after the deadline for the final return (in a case where the final return was adjusted),
B) In this case, as of July 19, 93.7.19, the transfer date was 3,340,000 won per original square meter, and 3,700,000 won respectively, respectively, at 3,320,000 won per original square meter, respectively, and at 3,700,000 won, respectively, at 93.9.18, the disposition authorities imposed tax by applying the officially announced individual land price. However, the issue is that the disposition was erroneous for taxation by applying the initially announced individual land price without applying the modified officially announced individual land price when calculating the transfer value of the site.
D. Accordingly, this case’s petition for a trial has some grounds for the claimant’s assertion, and such decision is made in accordance with Articles 81 and 65(1)2 and 65(1)3 of the Framework Act on National Taxes.