Cho High Court 2019 Mine198 (2019.07)
The main issue is that the duty to pay taxes has already been established upon the completion of the registration of transfer of ownership to the purchaser, and since the name of the purchaser is maintained until the date of the examination, the seller cannot be deemed to have actually recovered the right to the key real estate, and the sale and purchase of the key real estate is just unless the contract is revoked automatically, and the fact that the claimant corporation has filed a lawsuit can not affect the disposition of this case. In light of the above, it is difficult to accept the claim claim.
Article 9 of the Corporate Tax Act / Article 15 of the Corporate Tax Act
The early 2015 middle 0274
The appeal is dismissed.
1. Summary of disposition;
A. On May 15, 2013, a claimant corporation engaged in a construction business borrowed OO Won on the security of an officetel located in a new OO (hereinafter referred to as “sub-owned real estate”) to other OO, OO, orOO(hereinafter referred to as “creditors”) but was unable to repay borrowed money, the key real estate in August 19, 2013 was transferred to creditors.
B. The claimant corporation filed a lawsuit against the transfer of ownership (hereinafter “instant lawsuit”), but the OO court was a party to the transfer of ownership, but the creditors assessed the key real estate as OO won and decided that the additional liquidation amount should be paid, and the claimant corporation is pending in the court at present after appeal.
C. On December 6, 2018, the disposition authority deemed that the applicant corporation failed to perform its duty to cooperate in tax payment, such as failing to issue tax invoices, even though the goods (contestable real estate) were supplied due to the transfer of ownership of the pertinent real estate, and corrected and notified the 2nd VAT OO in 2015 and the OOO of corporate tax in 2015 to the applicant corporation.
C. The applicant filed an appeal on March 4, 2019.
2. Opinion of the requesting corporation and the disposition agency;
A. The claimant corporation's assertion
(1) The ownership of the real estate at issue in the future is highly likely to be returned to the requesting corporation due to the progress of the key lawsuit, and the disposition of this case must be revoked.
(2) The acquisition and transfer value of the pertinent real estate under the substance over form principle is the same, so the imposition of corporate tax should be revoked by deeming that there is no transfer margin.
(b) Opinions of disposition agencies;
(1) Even if a lawsuit is pending, insofar as ownership is not returned to the ownership due to a final and conclusive judgment that became void, the transfer of ownership is deemed to be a sale, and thus, the disposition imposing value-added tax is justifiable.
(2) Although the claimant corporation asserts that the acquisition and transfer value of the pertinent real estate is the same, it is not present objective evidence. The disposition of this case is the sale price of OOO assessed on the disputed real estate in the lawsuit at issue, OOOO in the account books of the claimant corporation as the acquisition price, and it is disposed of according to objective grounds.
3. Hearing and determination
A. Key issue
1. The legitimacy of the claim that the disposition of this case is to be revoked, because a lawsuit seeking invalidation is pending against the transfer of ownership of the real estate at issue.
(2) Appropriateness of the claim claim purporting that the transfer margin did not accrue due to the same acquisition value and transfer value of the key real estate
(b) Relevant Acts;
(1) Value-Added Tax Act;
Article 9 (Supply of Goods) (1) The supply of goods shall be a delivery or transfer of goods according to all contractual and legal grounds.
Article 15 (Time of Supply for Goods) (1) The time of supply for goods shall be as follows. In such cases, necessary matters concerning the time of supply for goods by specific types of transactions shall be prescribed by Presidential Decree:
2. Where moving goods is not required: When the goods are made available.
(2) Corporate Tax Act
Article 14 (Income for Each Business Year) (1) Income for each business year of a domestic corporation shall be the amount calculated by subtracting the total amount of deductible expenses belonging to the business year from the total amount of gross income belonging to the business year.
Article 15 (Scope of Gross Income) (1) The gross income shall mean the amount of gains or revenues (hereinafter referred to as "gains") generated by transactions which increase the net assets of the concerned corporation, except for capital input or financing and what is provided for in this Act.
C. Facts and determination
(1) On September 1, 2010, the applicant corporation was bankrupted on February 6, 2017, and voluntarily closed on December 22, 2017, and currently manages the trustee in bankruptcy.
(2) On May 15, 2013, the claimant company borrowed OOO won to the creditors, prepared a loan certificate with interest (2.5% per month) to repay on July 15, 2013, and the creditors filed provisional registration of the right to claim ownership transfer registration due to purchase and sale reservation to secure this, and registered ownership transfer as shares of each party on August 19, 2013.
(3) The claimant corporation filed a lawsuit for invalidity of the transfer of ownership of the real estate at issue, and the main contents of theO's judgmentO are as follows.
(4) According to the conclusion of the judgment of the court below in this case, the key real estate was assessed as the OOO(Land OOO, building OOO) and the creditors paid the additional liquidation amount based on it.
(5) The value of the key real estate stated in the account book of the requesting corporation (2014 business year) shall be confirmed to be the cause of the OO or OO for the portion of the land (construction intermediate assets).
(6) The claimant corporation appealed in the OO judgment and won part of the OO judgment which was rendered on May 1, 2019, and the proceedings of this case were as follows. However, it is confirmed that the creditors appealed in the OO judgment and the OO is currently proceeding.
(7) We examine the above facts and relevant laws and regulations comprehensively.
(A) First of all, the issue ① is examined with respect to the issue, and the claimant has filed an invalid lawsuit against the transfer of ownership of the real estate in question, and the instant disposition should be revoked; however, the claimant asserted that the instant disposition should
In the absence of a final and conclusive judgment of the court as of the date of trial, this disposition cannot be deemed to be unlawful, and even if the registration of ownership has been made for a buyer in accordance with the final and conclusive judgment, it is difficult to deem that the registration does not constitute a transfer unless the seller has actually recovered his/her right to the relevant property, as long as the registration of ownership has been restored and cancelled due to the cancellation of the contract, even if the cancellation of the contract is recognized (the same purport is the same as the first instance judgment 2015
The main issue is that real estate has already been registered for transfer of ownership to a purchaser (creditors) and tax liability has already been established. Since the name of the purchaser has been maintained until the trial date, it cannot be deemed that the seller (contractors) has actually recovered the right to the key real estate; and as the contract is defective or defective in the sales contract, so long as the contract has not been canceled automatically, the sale and purchase of the key real estate is just, and the fact that the claimant has filed a lawsuit cannot affect the disposition of this case, it is difficult to accept the claim.
(B) Next, the claimant corporation should be deemed to have no transfer margin because the transfer value of the real estate at issue B is the same as the transfer value of the real estate at issue;
As long as a taxpayer's use of expenses claimed by the tax authority and the other party to the payment are proved to be false, the existence and amount of such expenses should be easily proved by the taxpayer's side that it is easy to present all data, such as account books and evidence on specific spending facts (see Supreme Court Decision 94Nu3407, Jul. 14, 1995);
As long as the creditors, who are the purchaser, paid the additional liquidation money in accordance with the judgment of the lawsuit at issue and received the transfer of ownership from the court, it is reasonable to view the appraised value by the court decision as the transfer value of the
The claimant corporation, as a constructor, is the inventory assets of the claimant corporation, so it is reasonable that the disposition agency has considered the real estate as the acquisition value on the basis of the value stated in the account book of the claimant corporation, and the claimant corporation has to prove that it is to reject the claim, but the claimant corporation has failed to present objective evidence.
This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the petition for adjudication has no merit as a result of the review.