Cho High Court Decision 2009Du0343 (O. 21, 2009)

Time of land transfer;

The settlement date of the remainder is not clear because the ownership is transferred to a third party without cancelling the collateral security related to land and the sales contract is prepared, but it is difficult to regard the remainder of the payment stipulated in the sales contract as the true payment date.

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

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 96,006,969 (including additional tax) for the year 2006 against the Plaintiff on November 1, 2008 (hereinafter “instant disposition of imposition”) shall be revoked.

1. Circumstances of the disposition;

A. On May 16, 2002, the Plaintiff and ○○○○-dong Housing Site Development District (hereinafter referred to as “Seoul Metropolitan City Development”) 2 block 4, 000, the Plaintiff owned by ○○○○○-dong Housing Site Development District (hereinafter referred to as “the first land”) and 3 block 7 block 454.6 m2 (hereinafter referred to as “the second land number before closure of land partition: 00-0) and 454.6 m2 (hereinafter referred to as “the second land”). The Plaintiff and ○○-dong Housing Site Development Co., Ltd. (hereinafter referred to as “Seoul Metropolitan City Development Co., Ltd., Ltd. before the alteration, hereinafter referred to as “○○-dong Housing Development”). The Plaintiff received 2,484,700,000,000 won and paid the remainder to ○○○-dong Housing Development Co., Ltd., Ltd. (hereinafter referred to as “the instant land”). The Plaintiff received 200,70700,27000.

B. Each land of this case was inherited by the deceased HongA’s inheritors including the plaintiff on May 2, 1984, but the plaintiff acquired by division of inherited property or co-ownership. The plaintiff decided the acquisition date of each land of this case as the date of division of inherited property or co-ownership, and decided on March 15, 1993 the acquisition date of the land of this case No. 2 of this case was September 17, 1991, and the transfer date of each land of this case was March 2, 2006, and the preliminary return of transfer income tax was filed with the defendant on June 1, 2006.

"C. The defendant is notified by the director of ○○ Regional Tax Office of the audit and cadastral data that "the time of acquisition of each land of this case shall be May 2, 1984, which is the date commencing the inheritance, and the date of transfer shall be deemed as March 2, 2006 as stipulated in the plaintiff's preliminary return, but the date of acquisition shall be deemed as March 2, 2006, and the disposition of imposition of this case was issued on November 1, 2008." "The plaintiff was dissatisfied with the disposition of this case and filed an appeal with the Tax Tribunal, but was dismissed by the Tax Tribunal on April 21, 2009."

[Ground of recognition] Facts without dispute, Gap evidence 1-2; Gap evidence 2; Gap evidence 7-9 (including each number), Eul evidence 1-4; the purport of the whole pleadings

2. Whether the imposition disposition of the instant case is lawful; and

A. The plaintiff's principal

(1) The Plaintiff received all remainder from △ Development on October 29, 2002 according to the instant sales contract. However, △△ Development failed to register the ownership transfer for the reason that each of the instant “land was planned to be reserved for land development and rearrangement of public records was difficult, and thereafter, the representative director of △△ Development was tried for unregistered resale of real estate, etc., and the Plaintiff did not complete the registration of ownership transfer for each of the instant land to △ Development.

(2) The land of this case was unregisteredly resold to DaB without completing the registration of ownership transfer in its own name on March 2, 2006, and the land of this case was transferred to DaB, and the land of this case No. 2 was transferred to KimCC and GaD.

(3) However, when a registered titleholder on each of the instant lands prepares a formal sales contract with ChoB, etc., the Plaintiff, who is the Plaintiff, made a false report on the transfer date to ChoB, etc. on March 2, 2006, on which the transfer registration was made in relation to each of the instant lands.

(4) The Plaintiff’s transfer of each of the instant lands to △ Development through the settlement of the balance under the instant sales contract was made on October 29, 2002, but the tax law was nonexistent and reported on March 2, 2006 on March 2, 2006 on the transfer date of each of the instant lands to △B, etc., and the instant disposition of imposition was based on this premise, and thus, the instant disposition of imposition was unlawful.

(b) Related Acts and subordinate statutes: To be stated in attached Form;

(c)a fact;

(1) The key contents of the register with respect to land 1 in the instant case are as follows:

(a) Matters concerning ownership;

1) The registration of transfer of ownership in the name of the plaintiff for the reason of subdivision of the jointly owned property on March 15, 1993, which was made on March 12, 1993

2) The provisional disposition order on October 25, 2004 was issued on the ground of the provisional disposition order order on October 21, 2004 and the provisional disposition order on the provisional disposition order on the provisional disposition order (the right to preserve ownership under a sales contract) is registered on February 18, 2006, and the cancellation is registered on February 18, 2006.

3) The registration of transfer of ownership in the name of ChoBB made on March 2, 2006 on the same day is completed.

(b) Matters pertaining to rights other than ownership;

A contract to establish a contract on the same day on January 18, 2006 has been filed for the establishment of a mortgage of 2,310,000 won to the debtor, for the establishment of a mortgage of 2,310,000 won, and for the cancellation on March 2, 2006 on the same day.

(2) The main contents of the register on the land No. 2 of this case are as follows.

(a) Matters concerning ownership;

1) A registration for transfer of ownership under the Plaintiff’s name on September 17, 1991 (the reason for inheritance due to a division made on May 2, 1984)

2) The provisional disposition order on October 25, 2004 was issued on the ground of the provisional disposition order order on October 21, 2004 and the provisional disposition order on the provisional disposition order on the provisional disposition order (the right to preserve ownership under a sales contract) is registered on February 18, 2006, and the cancellation is registered on February 18, 2006.

“3) Co-ownership registration is completed on the same day on March 2, 2006 with KimCC and ParkD (referred to as 'BB, etc.' if the title holder for the registration of ownership transfer of the land of this case is jointly referred to as 'the title holder'; hereinafter referred to as 'B, etc.').

(b) Matters pertaining to rights other than ownership;

A contract to establish a contract on the same day on January 18, 2006 has been filed for the establishment of a mortgage of 2,310,000 won to the debtor, for the establishment of a mortgage of 2,310,000 won, and for the cancellation on March 2, 2006 on the same day.

(3) On February 17, 2006, the Plaintiff prepared a sales contract (the remaining payment date) with respect to the land No. 1,3740,000 won (the remaining payment date March 7, 2006), which is 1,3740,000 won for the land No. 1 of this case, between KimCC and ChoB, other than KimCC and ParkD on the same day, with respect to the land No. 2 of this case as the price for the land No. 5,47,50,000 won.

[Ground of recognition] Facts without dispute, Gap evidence 7-1, 2, Eul evidence 5-1, 2, Eul evidence 7-1, 7-2, and the purport of the whole pleadings

D. Determination

(1) The remainder payment date stipulated in the sales contract of this case is October 29, 2002. However, it is difficult to view the remainder payment date of this case to be the creditor for the development of △△, the right to be preserved was registered as the right to claim the transfer registration under the sales contract, and the fact that the above provisional disposition registration was cancelled on January 18, 2006, and the △△ Development was made with the maximum debt amount of KRW 2.3 billion as seen above. However, it is difficult to view the remainder payment date of this case to be the land of this case as the transfer registration under the name of △B, etc., and it is difficult to view that the transfer registration was made on May 16, 2002 to the extent that there is no special circumstance to deem that the transfer registration was made on the land of this case between the Plaintiff and the Defendant for more than 2 years without any specific circumstance to deem that the transfer registration was made on the land of this case.

(2) Meanwhile, Article 162 (1) 1 of the Enforcement Decree of the Income Tax Act provides that if the date of liquidation is unclear, the date indicated on the register, register, or list shall be deemed the date of transfer. Ultimately, in the case of this case, the date on which each land of this case was transferred from the Plaintiff to ChoB, etc. is transferred from the Plaintiff to ChoB, etc., the date on which the transfer of ownership of each land of this case was made under the name of ChoB, etc., shall be deemed to be March 2, 2006.

(3) Therefore, the instant disposition on the premise that the transfer date was March 2, 2006 is lawful.

3.In conclusion

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

(c)