Seoul Administrative Court 2009Guhap50565 ( October 10, 2010)

early 2009 Swiss056 ( August 24, 2009)

propriety of this disposition by donation of any deposit withdrawal amount

Inasmuch as deeming that the father of the Plaintiff’s father managed funds through the borrowed name account accords with social norms, the disposition authority determined that the disposition authority did not err by withdrawing the acquisition time of donated property from the Plaintiff’s own account and regarding the date of actual use and imposing the gift tax on the Plaintiff.

The contents of the decision shall be the same as attached.

쇠鹬 쇠지鹬 3000 쇠지지지지 3000 지지지지지지지지지 3000

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing KRW 457,022,580 on the Plaintiff on February 1, 2010 is revoked.

쇠지지지지 3000 지지지지지지 3000 지지지지지지지지지지 3000

1. Details of the disposition;

A. On September 16, 2003, the Plaintiff acquired 1,775 square meters and 76-2 square meters and 116 square meters (hereinafter “instant land”). On July 10, 2008, the Plaintiff entered into a contract to transfer the instant land to CCC Co., Ltd. (hereinafter “Non-Party Company”) for KRW 1,716,00,000, and received KRW 1,681,680,000 out of the transfer price from the Non-Party Company on July 14, 2008.

B. On September 30, 2008, the Plaintiff filed a preliminary return of capital gains tax calculated on the premise that the transfer of the instant land is subject to the reduction or exemption of capital gains tax on the farmland substitute land (the transfer price was reported as KRW 1,716,00,000, which is the full amount thereof).

C. Since the Plaintiff did not directly cultivate the instant land, the Defendant rendered a disposition imposing capital gains tax of KRW 457,022,583 on February 1, 2010 on the Plaintiff (hereinafter “instant disposition”) for the transfer income tax of KRW 457,02,583 reverted to the year 2008 (hereinafter “instant disposition”) (the transfer price was calculated as the total amount of KRW 1,716,00,000, as reported).

[Reasons for Recognition] Facts without dispute, entry of Eul 1 and 2

2. The assertion and judgment

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) Since the Plaintiff did not receive any balance from the Nonparty Company, it cannot be deemed that the Plaintiff transferred the instant land, which is the requirement for imposition of capital gains tax.

(2) The Plaintiff directly cultivated the instant land, and thus, is subject to reduction of capital gains tax on the farmland substitute land.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Determination on the first argument

Article 88(1) of the Income Tax Act provides that "transfer" means that an asset is actually transferred at a price by sale, etc., regardless of the registration or enrollment of the asset, and where the ownership of the land is actually transferred at a price, it shall be deemed that the price of the land has been paid to the extent that it is deemed that the price of the land was paid to the extent that it was actually paid at a price (see, e.g., Supreme Court Decision 82Nu286, Feb. 14, 1984).

On July 10, 2008, the Plaintiff entered into a contract with the non-party company for the transfer of the instant land in KRW 1,716,00,00 on July 14, 2008, and received KRW 1,681,680,00 for the said purchase price as the down payment and the intermediate payment, and the remainder of which is not yet received is only KRW 34,320,00,00 for the remainder of 2%. ② The non-party company received the documents for disposal trust of the instant land from the Plaintiff immediately after paying the down payment and the intermediate payment to the Plaintiff, and accordingly, HHH corporation was obligated to transfer the ownership of the instant land to the non-party company for the transfer of the instant land due to the transfer of ownership to the non-party company by the scheduled return of the transfer of ownership to the non-party company.

Therefore, the plaintiff's above assertion is without merit.

(2) Judgment on the second argument

In order to have capital gains tax reduced or exempted pursuant to Article 70 (1) of the Restriction of Special Taxation Act, the relevant farmland must be directly cultivated. However, in light of the fact that the Plaintiff directly cultivated the instant land, it is difficult to believe that the Plaintiff resided in Incheon which is too distant, and that the Plaintiff was engaged in personal taxi business in Incheon, and that there is no other evidence to acknowledge it.

In addition, in order to reduce capital gains tax pursuant to Article 70 (1) of the Restriction of Special Taxation Act, a person shall reside in a Si/Gun/Gu where the farmland in question is located for more than three years pursuant to Article 67 (1) of the Enforcement Decree of the Restriction of Special Taxation Act, an area within a Si/Gun/Gu where the farmland in question is located, an area within a Si/Gun/Gu adjacent thereto, and an area within a 20km radius from the farmland in question. As seen earlier, the plaintiff resided in Incheon located away from the area where the land in this case

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and it is so decided as per Disposition.