Cho High Court Decision 2008Do0166 (No. 18, 2008)
[Types of Decision]
[Summary of Decision]
It is confirmed that the real estate company did not register the transfer of the ownership of the land acquired from an individual and sold the land to the claimant, and since the actual transaction price of the land at issue is based on the financial data of the real estate company, the disposition that collected acquisition tax, etc. for the underreported portion
Article 111 of the Local Tax Act / [Tax Base] / [Proof, etc. of the acquisition price of the Special Self-Governing Province] / Scope of the acquisition price of the Specialized Local Tax Act
I dismiss the appeal.
A. On March 15, 2006, the disposition agency confirmed that the claimant violated the actual transaction of OOOOOOO 636-1 and three lots of land outside 1,169 square meters (hereinafter “this case’s land”), and paid acquisition tax, etc. However, on January 25, 2007, the actual transaction of OOO’s real estate by the Commissioner of the National Tax Service, including the claimant, was notified by the reported violator (OOOOOO), and 125 persons, including the claimant, OOOOOOOOOOOOO and 125 lots of land outside 65,613 square meters, and 1,169, 2015, 300, 1205, 301, 405, 1205, 405, 197, 2014, 205, 197, 2014, 2014, 197, 105
B. The claimant appealed and filed an appeal on February 11, 2008.
2. Opinions of the claimant and disposition agency;
A. The claimant's assertion
According to the copy of the register and the seal of approval agreement of this case's land acquired by the claimant, it is confirmed that this case's land was acquired from the individual, and the OOOO Development Co., Ltd. (hereinafter referred to as "the real estate company") is not a real estate trading agency acting as an agent for the real estate transaction of this case's land, but it is improper to collect this case's acquisition tax, etc. with the amount included in all expenses and management expenses to be excluded from the tax base of this case's acquisition tax, etc. as its tax base, by deeming that the real estate company acquired this case's land only from the real estate company without confirmation of facts at the disposal agency.
(b) Opinions of the Do Governor;
As the actual transaction notified by the OOO National Tax Service was confirmed to have been omitted the registration of ownership transfer of the land acquired by the real estate company from an individual and sold to the applicant in the material notified by the person suspected of violating the obligation to report, the actual transaction price of the land in this case is based on the financial data (R/T,O/T payment ledger) of the real estate company in this case, so it is reasonable to collect the acquisition tax, etc. for the under-reported portion.
3. Hearing and determination
(a) Points in dispute;
Whether it is legitimate to make the tax base of acquisition tax, etc. purchased where the fact of selling the real estate purchased by a corporation to an individual without completing the registration of transfer of ownership, is confirmed by the notification of the Commissioner of the National Tax Service.
B. Relevant statutes
(1) Article 111 (Tax Base) (1) of the Local Tax Act shall be the value at the time of acquisition: Provided, That in cases of acquisition in annual installments, it shall be the annual installment.
(2) The value at the time of acquisition under paragraph (1) shall be that reported by the acquisitor: Provided, That if there is no indication of the declared or reported value or such reported value falls short of the standard market value as prescribed in the following subparagraphs, such standard market
(5) The following acquisitions (excluding donation, contribution, other gratuitous acquisition, and acquisition through transactions under Article 101 (1) of the Income Tax Act) shall be based on the actual acquisition price or the amount of annual installments, notwithstanding the proviso to paragraph (2) and paragraph (3):
1. Acquisition from the State, local governments, and local government associations;
2. Acquisition due to the importation from a foreign country;
3. Acquisition price of a written judgment or accounting books of a corporation, which is verified by those prescribed by Presidential Decree;
4. Acquisition through the public auction.
5. Acquisition verified under Article 28 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act by submitting a report under Article 27 of the same Act.
(2) For the purpose of Article 82-2 (Verification, etc. of Acquisition Value) (1) of the Local Tax Act, the term "those as prescribed by the Presidential Decree from among the judgment and the corporate account books" in Article 111 (5) 3 of the Act means
2. Corporate account books: The director, assistant director, cashier's ticket, and the settlement of accounts prepared by a corporation;
(3) Article 82-3 (Scope of Acquisition Prices) (1) of the Enforcement Decree of the Local Tax Act means all the expenses paid or to be paid to the opposite contractual party or a third party in order to acquire a taxable object prior to the date of acquisition of the taxable object [including introduction fees, design expenses, late fees, interest on installments, and the amount appropriated for construction funds, but excluding late fees and interest on installments if acquired by a person other than a juristic person]: Provided, That if the agreed amount in a sales contract is discounted on the condition of a lump sum payment, etc., it shall be such discounted amount.
(4) When a party to a transaction (referring to a buyer and a seller; hereafter the same shall apply in this Article) concludes a sales contract on any of the following real estate or rights to acquire real estate, the party to the transaction (referring to a buyer and a seller; hereafter the same shall apply in this Article) shall jointly report to the head of the Si/Gun/Gu having jurisdiction over the location of the real estate subject to sale and purchase (in cases of a sales contract on rights, the real estate subject to such rights), within 60 days from the date of conclusion of the sales contract:
1. Land or buildings;
2. Status of being selected as an occupant due to authorization of a management and disposal plan under Article 48 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions
3. Status of being selected as an occupant of housing constructed and supplied by obtaining approval of a project plan under Article 16 of the Housing Act.
(5) Article 28 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (1) In order to establish the fair and transparent real estate transaction order, the Minister of Construction and Transportation shall establish and operate a system to verify the real estate transaction price by utilizing the details of real estate transactions reported under Article 27, the land and housing prices announced under the Public Notice of Values and Appraisal of Real Estate Act, and other information on real estate prices.
(2) The head of a Si/Gun/Gu shall, upon receiving a report pursuant to Article 27, verify the propriety of the transaction price verification system of real estate pursuant to paragraph (1).
(3) The head of a Si/Gun/Gu shall notify the results of verification pursuant to paragraph (2) to the head of the tax office having jurisdiction over the location of the relevant real estate, and the head of the tax office so notified may utilize the reported matters for imposing a national or local
C. Facts and determination
(1) On July 12, 2006, the claimant acquired the pertinent land and filed a return and payment of acquisition tax, etc. However, on January 26, 2007, the director of the Daejeon Regional Tax Office notified the relevant disposition authority of the fact that the real estate transaction in the real estate company of the fact that he/she reported the fact that he/she collected acquisition tax, etc. on November 13, 2007 from the relevant evidentiary materials submitted so that the real estate transaction in the real estate company can utilize the materials suspected of violating duty to report as taxation data, such as
(2) Of the corporate accounting books, Article 111(5)3 of the Local Tax Act and Article 82-2(1)2 of the Enforcement Decree of the Local Tax Act stipulate that the acquisition price is verified by the director, assistant director, cashier’s ticket, or settlement of accounts prepared by a corporation, the actual acquisition price shall be the tax base. Article 82-3(1) of the Enforcement Decree of the Local Tax Act provides that the acquisition price, which is the tax base of acquisition tax, shall be all the expenses paid or payable to the other party or a third party in order to acquire the relevant object
(3) The claimant asserts that he acquired the land in this case from an individual, but according to the data of notification of the suspected violation of the obligation to report the actual transaction of real estate by the OOO Commissioner of the National Tax Service (the data of this case 1-219, January 25, 2007), seven persons, such as the claimant, out-of-request, etc., shall be the real estate selling company. According to the questionnaire on the actual transaction price investigation by the OOO Commissioner of the National Tax Service, two persons, such as OOOO, etc., from among those who acquired the land in this case, enter into a sales contract with the real estate company in this case and paid the transaction price by means of Internet banking and account transfer to the real estate company in this case. Thus, the claimant can be deemed to have acquired the land in this case from the real estate company in this case and sold it to the applicant without completing the ownership transfer registration.
(4) The actual transaction price of this case’s land notified by the Commissioner of the National Tax Service is the total sale price as stipulated in Article 111(5)3 of the Local Tax Act and Article 82-2(1)2 of the Enforcement Decree of the same Act, which can be known that this case’s real estate company is the total sale price based on the corporate account books, such as deposits and R/T deposited in the instant real estate company, which was submitted by the Commissioner of the National Tax Service as explanatory materials to the Commissioner of the National Tax Service on November 29, 2006.
(5) In addition, the assertion that this case’s land includes all expenses and management expenses to be excluded from the tax base amount of acquisition tax, and that this case’s land’s land’s land’s purchase and sale under the real estate sales contract concluded with seven persons, such as Lee Jae-gu, etc. other than the claimant of this case’s land, is consistent with the sales amount of this case’s land’s land’s purchase and sale notified by the OOOO Commissioner.
Therefore, it is judged that there is no error in the disposition imposing acquisition tax on the claimant.
This case shall be decided as ordered under Article 77 (5) of the Local Tax Act and Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the claimant's assertion is groundless as a result of the review.