Article 94 of the Income Tax Act: Scope of Transfer Income

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

On November 3, 2011, the Defendant rendered a decision that the imposition of the capital gains tax of 00 ○○○ (including additional tax of 00 won) for the Plaintiff on November 3, 201 is revoked.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance. Thus, this part of the judgment is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff argues that the sale contract entered into with the rightB was automatically invalidated or cancelled as the non-registered purchaser's status entered into a contract to purchase the land 1, 2, and 3 with the rightB after he entered into a contract to purchase the land 1, 2, and 3 from the clan. However, as the sale contract entered into with the rightB was rescinded due to the non-performance of the clan, the sale contract entered into with the rightB was also impossible, and the rightB transferred the land 2 from a clan based on a separate sale contract entered into between the rightB and the clan, so it cannot be deemed that the plaintiff transferred the land 2 to the rightB. Even if the sale contract between the two clans and the plaintiffs on the land was fulfilled and the rightB was completed in the name of the rightB, the acquisition value of the land 2 is the 00 billion won according to the ratio of the land 1, 2, and 3, and the transfer value was made in accordance with the rightB's disposal other than the sales contract of this case.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) As of March 20, 2012, the lands Nos. 1, 2, and 3 were owned by both the original co-owned land and 11,760 shares for each 12,348 shares among them as of March 20, 2012, the first, the second, the second, and the third, the third, the transfer registration of shares was completed in the name of KimCC in the future.

2) However, on March 20, 2002, the Plaintiff purchased all the land Nos. 1, 2, and 3 from a clan to ○○○○○○○○, and paid down payment to ○○○○○○○, the intermediate payment to ○○○○, and the intermediate payment to ○○○○, in lieu of the Plaintiff’s new construction of a building to be used as a clan hall and the intermediate payment to ○○○○○○, on the other hand, transferred all the rights, such as sales and lease of the land Nos. 1, 2, and 3 to the Plaintiff (Article 1 of the special agreement) and agreed to immediately submit it to the Plaintiff (Article 6 of the special agreement) when the Plaintiff requests documents necessary for such disposition (hereinafter referred to as “the first sales agreement”), and the Plaintiff paid down money to ○○○○○○ on the day of the contract pursuant to the said agreement. At the time of conclusion of the first sales contract, the Plaintiff participated in the conclusion of the contract as a representative of

3) On May 2, 2002, the Plaintiff sold the land No. 2 to ○○○○○○○ on the purchase price. The down payment KRW ○○○○○○○○ on the date of the contract, the intermediate payment KRW on May 28, 2002, and the remainder KRW ○○○○○○ was paid on June 10, 2002, while the Plaintiff purchased and sold the land to ○○○○○○○○ on the same day, and the said land is owned by a clan and KimCC, and the Plaintiff did not complete the registration of transfer, so the Plaintiff provided documents related to the transfer of ownership at the time of the intermediate payment payment, but entered into a contract and compensate the buyer for the double amount of the down payment (hereinafter referred to as the “second sale contract”). Under the above agreement, the Plaintiff received KRW ○○○○○○ through △△△△ as the buyer’s agent at the time of the conclusion of the second sale contract. The Plaintiff introduced the Plaintiff as the purchaser of the land No. 2 and entered into the said contract as the seller. 2.

4) On May 28, 2002, the date of payment of intermediate payment under the second sales contract, the land on the register No. 2 remains as joint ownership by a clan and a third party, and as the plaintiff did not provide necessary documents for the registration of ownership transfer, the rightB demanded the plaintiff to continue to perform the stipulated sales contract, such as arranging ownership relations, but did not express his/her intention of rescission or termination as to the second sales contract.

5) On June 12, 2002, the Plaintiff notified a clan of the cancellation of the sales contract by content-certified mail and demanded the clan to compensate for the construction design expenses already paid in lieu of down payment and intermediate payment on the ground that the clan failed to provide land necessary for the disposal of the second land.

6) In the case of the land No. 1 and No. 2 of July 29, 2002, a clan transferred on July 1, 2002, the portion of public land was entirely transferred on the ground of trade on July 1, 2002, but the land No. 3 was still not transferred from the remaining share owners.

7) Of the remainder of the purchase price pursuant to the second sale contract on August 2, 2002, ○○○○○○ under the direction of △△△ order, ○○○○ shall be divided into a clan, ○○○○○○○ and ○○○○○○, and the Plaintiff shall transfer KRW 75,00,000 to ○○○○, which is a regular act in △△△, and shall pay KRW 63,00,000 for other expenses, and the balance amount of KRW 475,00,000 shall be paid. After receiving a receipt made in the name of the Plaintiff, the seller’s clan, the purchaser’s rightB, the purchase price of KRW 420,00,00 for the second land, which was 420,000,000 won, without undergoing the registration of ownership transfer from the Plaintiff pursuant to the sale contract (Evidence No. 5) on July 16, 2002. Although many of the parties to the clan or the Plaintiff’s husband participated in the settlement process.

8) At the court of first instance, the Plaintiff’s husband, E-E and Masan testified that the clan entered into a separate sales contract with the rightB after the termination of the first sales contract between the Plaintiff and the Plaintiff, and accordingly the rightB transferred the ownership of the second land to the rightB, and since the rightB was not cancelled, the seller under the contract was the Plaintiff, and the seller under the contract confirmed that the clan would transfer the ownership of the second land in the currency with the president of the clan at the time of settlement of the balance, and paid the balance by dividing it to the clan, the Plaintiff, and the Kim F in accordance with the direction of the court of first instance after confirming that the clan would transfer the ownership of the second land.

9) Meanwhile, on September 11, 2002, a clan held a meeting of executive officers and decided to purchase the land of ○○○○○○, and ○○○○○, Incheon, and to newly construct a clan hall.

Facts that there is no dispute over recognition, Gap's evidence Nos. 1 through 5, 18, Eul's evidence Nos. 6, 7, and 8, and the testimony and the purport of the whole pleadings of the court of first instance and the whole pleadings.

D. Determination

1) The amount of income tax at the time of transfer of unregistered assets is calculated by applying the heavy tax rate (60/100 of the tax base of capital gains). The transfer of unregistered assets refers to the transfer of assets subject to capital gains without registering the acquisition of such assets (Article 104(1)3 and (3) of the former Income Tax Act (amended by Act No. 6781, Dec. 18, 2002; hereinafter the same shall apply). Meanwhile, Article 14(1) of the Framework Act on National Taxes declares the principle of substantial taxation as a taxpayer if the ownership of income, profit, property, act or transaction is merely nominal and there is another person to whom such income, profit, act or transaction belongs. The same applies to a person who actually controls and manages the assets subject to capital gains, such as income, profit, act or transaction, to the extent that the person is not the nominal owner, but the person who actually controls and manages the assets subject to capital gains should be determined by taking into account the form and appearance of the tax authority’s separate liability and calculation of the relevant tax base.

2) In the case of this case, it is difficult to view that ○○○○○○○○○○ Party’s sales contract was not explicitly cancelled, and that ○○○○○○ Party’s 2 was consistently aware of the Plaintiff’s sales contract, and that ○○○○○○ Party’s 2 received receipts issued under the name of the Plaintiff’s 2, and that the amount paid by ○○○ Party’s 2 was consistent with the 2,00 sales contract. Meanwhile, the Plaintiff concluded the 2,00 sales contract to sell the 2,00 won to ○○○ Party’s 2,000,000 KRW 1,00,000,000,000,000,000 KRW 2,00,000,00,000,000,000,000,000,000,000 won was no more than KRW 2,00,00,00.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed. It is so decided as per Disposition.