early 2010 Heavy3226 ( October 25, 201)

The transfer date shall not be deemed a sales contract for a long-term installment, and the transfer date shall be deemed the remainder payment date.

Since it is obvious that the time of installment payment is the case where the payment is made by dividing the price into the down payment, intermediate payment, and the balance, but it is not deemed a regular installment under the generally accepted social norms, the time of transfer shall not be deemed a sales contract under the long-term installment terms, and unless there is no evidence to deem it an exceptional case

2011Guhap6258 Revocation of Disposition of Imposing capital gains tax

KimA

Head of Si Tax Office

October 27, 2011

December 15, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 84,128,260 for the Plaintiff on August 1, 2010 shall be revoked.

1. Details of the disposition;

A. On April 28, 1983, the Plaintiff acquired and owned 1,835 square meters and 469 square meters and 00-0,000,0000,0000,0000 (hereinafter referred to as "each of the above lands", and entered into a sales contract with BB (hereinafter referred to as "B") which promoted an urban development project on December 10, 1999, selling the instant land to 1.56,825,000,000 won (hereinafter referred to as "the sales contract in this case") on the date of entering into the contract, and the intermediate payment of 1.46,60,000,000 won is 1.4,000,000 won and the intermediate payment of 1.42,2250,000 won, and 2,000,000 won, within 15,000,000 won after approval for the above project.

B. Accordingly, the down payment was paid on the day of the instant sales contract, the intermediate payment was paid on April 11, 200, and the remainder payment was paid on December 22, 2006 without the approval of the said business, and the said payment was fully paid.

C. On January 5, 2010, the Plaintiff reported and paid KRW 323,833, and 203 to the Defendant for the transfer income tax attributed to the year 2006 following the transfer of the instant land. On May 31, 2010, the Plaintiff filed a request for correction of the said paid tax amount, claiming that the calculation of the transfer margin should be based on the standard market price under the relevant provisions of the Income Tax Act, which was applied at the relevant transfer date, on the premise that the transfer time of the instant land in question is the payment date of intermediate payment.

D. As to this, the defendant on December 22, 2006, the remaining payment date of the transfer date of the land of this case.

On August 1, 2010, the transfer margin was calculated based on the actual transfer value, and the Plaintiff corrected and notified the transfer income tax of 84,128,260 to the Plaintiff in 2006 (hereinafter referred to as the “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, 2, Gap evidence 3, 4, 7, Eul evidence 1, and the purport of whole pleadings

A. The plaintiff's assertion

1) The instant sales contract constitutes a long-term installment sales contract under Article 162(1)3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1664 of Dec. 31, 199) and Article 78(3) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 138 of Apr. 3, 2000), and thus, the transfer time under the instant sales contract constitutes a long-term installment sales contract (amended by Ordinance of the Ministry of Finance and Economy No. 138 of Apr. 3, 200) and the transfer time under the instant sales contract should be deemed to be December 10, 199, which is the date of the payment of the down payment. Therefore, even if the transfer value under the relevant provisions of the Income Tax Act, which was in force at that time should have been calculated at the market price based on the transfer value of the instant land, the transfer income tax of this case is unlawful.

2) Even if the time of the transfer of the instant land for household affairs is not considered as above, the Plaintiff was on April 200.

11. The above intermediate payment received 98.72% of the total purchase price, and the actual right to dispose of the land of this case had already been transferred to the non-party company at that time. Thus, the above intermediate payment payment date, which can be deemed to have been paid almost in full by social norms, should be viewed as the time of transfer of the land of this case. If so, according to the relevant provisions of the Income Tax Act, the transfer should have calculated the transfer margin of the land of this case based on the standard market price. The disposition of this case was unlawful since the transfer margin was calculated based on the actual transfer price and the transfer income tax was imposed based on it.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) As to the Plaintiff’s first argument

Article 162 (1) 3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 1664 of Dec. 31, 199) provides that the time of transfer of assets on a long-term installment basis as determined by the Ordinance of the Ministry of Finance and Economy shall be the first installment payment date, and Article 78 (3) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 138 of Apr. 3, 200) provides that the transfer of assets shall be subject to the long-term installment payment under the above Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Finance and Economy of Apr. 3, 200), "the long-term installment payment under the above Enforcement Ordinance of the Ministry of Finance and Economy of the relevant assets shall be the first installment payment date in two or more installments, and it shall not be deemed that the first installment payment is the fixed-term installment payment payment period under the socially accepted social norms. Therefore, if the above provision is to be applied, the first installment payment period.

2) As to the second argument of the Plaintiff

Article 88(1) of the former Income Tax Act (amended by Act No. 6276, Oct. 23, 200; hereinafter the same) provides that "transfer" subject to capital gains tax shall be actually transferred for consideration. "The transfer for consideration" should not be deemed as having been made to the extent that almost all of the proceeds were paid under social norms in cases of sale and purchase (see Supreme Court Decision 82Nu286, Feb. 14, 1984). However, the provision applicable to determining whether the transfer of assets subject to capital gains tax is subject to transfer, and its interpretation provides that "the transfer date and time of transfer shall be determined for the purpose of calculating capital gains tax" under the premise that the transfer date and time of transfer shall be determined separately by the former Enforcement Decree. In other words, Article 98 of the former Income Tax Act provides that "the transfer date and time of transfer of assets shall be determined by Presidential Decree No. 1655, Feb. 14, 1984; the transfer date and time of transfer of assets shall be determined by Presidential Decree No. 2016, supra.

3. Conclusion

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