Seocho 2014west 5105 ( December 26, 2014)

It is reasonable to see that compensation for the land at issue of this case is income from the transfer of assets.

It is reasonable to see that compensation for the land at issue of this case is income from the transfer of assets.

Article 88 of the former Income Tax Act / [Definition of Transfer]

2015 old-gu 53612 Disposition of revocation of refusal to correct capital gains tax

South ○○ 1

○ Head of tax office

October 19, 2016

December 16, 2016

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Cheong-gu Office

The Defendant’s refusal to rectify the transfer income tax corresponding to the year 2007 against Plaintiff South A on July 18, 2014 and the refusal to correct the transfer income tax corresponding to the year 2008 shall be revoked, respectively.

On July 17, 2014, the defendant revoked the disposition rejecting the correction of the capital gains tax of 007, which belongs to the capital gains tax of 2007 against BB.

1. Details of the disposition;

A. 27-20 m210 m2 (hereinafter referred to as "CC Dong"), 529-17 m2 m2 (hereinafter referred to as "CC Dong"), 529-17 m2 (hereinafter referred to as "CC Dong"), 529-18 m2 (hereinafter referred to as "CC Dong 529-18 m2 (hereinafter referred to as "CC"), 529-15 m210 m2 (hereinafter referred to as "CC Dong 529-15 hereinafter), CCdong 529-15 m210 m2 (hereinafter referred to as "CC Dong 529-15"), 527-18 m27-18 m27 m2, 529-18 m26 m2, 30 m26 m26 m2, hereinafter referred to as "Dong-28 m264 m26 m26 m2.

B. When the aforementioned land including each of the instant land was incorporated into theCC’s public works zone after the date, the Plaintiffs followed a consultation on compensation under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, and Plaintiff South A transferred land 527-18 on July 26, 2007 and 529-1 on the basis of the payment compensation, and reported and paid the transfer income tax ○○○ based on the payment compensation. On May 8, 2008, the Plaintiffs reported and paid the transfer income tax ○○○ on the basis of the payment compensation, and the Plaintiff transferred the land at the time of reporting and paying the transfer income tax 527-20 on May 8, 2008, 5, 5207, CC-529-18, CC-529-15, and 529-15, CC-B transferred the land at the time of reporting and paying the transfer income tax.

C. Meanwhile, in calculating the amount of compensation for a single land, including the instant land,CC, etc., the land value was assessed on the basis of the former condition prior to the cancellation of development restriction zones and the alteration of use. On July 26, 2007, the Plaintiff South Asia: (a) transferred the land on May 8, 2008, the 527-18 land, the CC-dong 529-17 land, the 529-18 land, the CC-dong 529-18 land; and (b) the Plaintiff B had the 468-20 land, the 468-20 land (hereinafter referred to as the “instant five land”); (c) the Plaintiff asserted that there was an error in the value calculation method of the land value; (d) the Plaintiff had the 2000 ○○ 2000 and the 2005 CC’s land transfer registration, and (e) the other 216-A-dong 2, the 2016.

D. The appellate court of the instant case (○○ High Court 2012Na○○) rendered a decision in lieu of the conciliation with regard to “CC 527-20 land, 529-17 land, 529-18 land, and CC 529-18 land, respectively, on April 8, 2014, the appellate court of the instant case (○○ High Court 201Na○○) paid ○○○ in relation to “CC 527-20 land,” and the decision became final and conclusive as of April 8, 2014.

E. The Plaintiffs asserted that their money that they received fromCC was revoked, and that they received unjust enrichment or damages as restitution, and that they did not constitute capital gains subject to taxation, and that they were filed a claim for correction to refund the capital gains tax of 007 and 2008, and the capital gains tax of 008, and the capital gains tax of 008, May 30, 2014, the Plaintiffs filed a claim for correction to refund the capital gains tax of 008.

F. The Defendant: (a) on July 18, 2014, on the ground that the Plaintiffs acquired compensation and unjust enrichment fromCC; and (b) on July 17, 2014, on the ground that the Plaintiffs transferred land compensation.

shall be subject to a disposition of rejection against B of a claim for correction (hereinafter referred to as the "disposition of this case").

had been.

G. On October 13, 2014, the Plaintiffs were dissatisfied with the instant disposition, and filed an appeal with the Tax Tribunal on October 13, 2014, but the Tax Tribunal dismissed the said appeal on December 26, 2014.

[Ground of recognition] Gap evidence Nos. 1 through 5, Eul evidence Nos. 1 through 5 (including branch numbers) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The contract for the consultation and sales of the instant land between the Plaintiffs andCC was cancelled by mistake, and there was no legal act for the commercial transfer of assets, such as sale, exchange, etc., and the return of original properties was impossible, and thus, the return was received as unjust enrichment or damages, and the price for the transfer of the instant land was not acquired. Thus, the Defendant’s rejection of a request for correction by deeming the transfer of assets in violation of the strict interpretation principle under the no taxation without law is unlawful

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Article 4(1) of the former Income Tax Act (amended by Act No. 9270, Dec. 26, 2008; hereinafter the same) provides that a resident's income is classified into global income, retirement income, and capital gains, and thus, "income accruing from the transfer of assets" (Article 4(1)3). Article 88(1) of the former Income Tax Act provides that "transfer" means a transfer of assets at a cost due to sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of assets."

2) Comprehensively taking account of the following circumstances revealed by comprehensively taking into account the facts of recognition as above and relevant provisions, it is reasonable to view that the compensation received by the Plaintiffs for the instant key land fromCC as income from the transfer of assets. Accordingly, the prior Plaintiffs’ assertion on a different premise is without merit.

① The main text of Article 88(1) of the former Income Tax Act provides that “transfer” means that an asset is actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of the asset, and a contract, such as sale and purchase, which is the cause of the transfer for price, does not require that the legal validity of the contract (i.e., the transfer for price).

See en banc Decision)

② The ownership of the instant land was finally reverted toCC, and the Plaintiffs, after receiving compensation fromCC, additionally received compensation through lawsuit and obtain compensation for the transfer of ownership of the instant land, thereby holding economic benefits accrued from both parties’ performance.

③ The Plaintiffs’ receipt of compensation for the instant land is due to the transfer of ownership of the instant land, and thus, under the substance over form principle, it appears that the assets are actually transferred for price regardless of their names or forms.

④ In comparison with the case where the Plaintiffs entered into a contract for a negotiation and sales with a reasonable price for the land at issue of this case, the result that the Plaintiffs would enjoy gains on transfer without taxation is inconsistent with tax justice and equity.

3. Conclusion

All of the plaintiffs' claims are dismissed as it is without merit, and it is so decided as per Disposition.