Examination Transfer 2010-0136 (24. 2010.06)

Where part of the balance is not paid, whether capital gains are realized

In light of the fact that the balance that has not been transferred and received is merely 2%, and that the preliminary return of capital gains tax was made, the argument that the transfer was not supported due to the failure to receive part of the balance is groundless.

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

Man Doz 300

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing KRW 457,022,580 on the Plaintiff on February 1, 2010 is revoked.

쇠지지鹬 u3000

1. Details of the disposition;

A. On September 16, 2003, the Plaintiff acquired 1,775 square meters and 76-2 square meters and 116 square meters (hereinafter “instant land”). On July 10, 2008, the Plaintiff entered into a contract to transfer the instant land to CCC Co., Ltd. (hereinafter “Non-Party Co., Ltd”) for KRW 1,716,00,000, and received KRW 1,681,680,000 out of the transfer price from the Non-Party Co., Ltd. on July 14, 2008.

B. On September 30, 2008, the Plaintiff filed a preliminary return of capital gains tax calculated on the premise that the transfer of the instant land is subject to the reduction or exemption of capital gains tax on the farmland substitute land (the transfer price was reported as KRW 1,716,00,000, which is the full amount thereof).

C. Since the Plaintiff did not directly cultivate the instant land, the Defendant rendered a disposition imposing capital gains tax of KRW 457,022,583 on February 1, 2010 on the Plaintiff (hereinafter “instant disposition”) for the transfer income tax of KRW 457,02,583 reverted to the year 2008 (hereinafter “instant disposition”) (the transfer price was calculated as the total amount of KRW 1,716,00,000, as reported).

[Reasons for Recognition] Facts without dispute, entry of Eul 1 and 2

2. The assertion and judgment

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) Since the Plaintiff did not receive any balance from the Nonparty Company, it cannot be deemed that the Plaintiff transferred the instant land, which is the requirement for imposition of capital gains tax.

(2) The Plaintiff directly cultivated the instant land, and thus, is subject to reduction and exemption of capital gains tax on the farmland substitute land.

(b) Related statutes;

C. Determination

(1) Determination on the first argument

Article 88(1) of the Income Tax Act provides that "transfer" means that an asset is actually transferred at a price by sale, etc., regardless of the registration or enrollment of the asset, and where the ownership of the land is actually transferred at a price, it shall be deemed that the price of the land has been paid to the extent that it is deemed that the price of the land was paid to the extent that it was actually paid at a price (see, e.g., Supreme Court Decision 82Nu286, Feb. 14, 1984).

On July 10, 2008, the Plaintiff entered into a contract with the non-party company for the transfer of the instant land in KRW 1,716,00,00 on July 14, 2008, received KRW 1,681,680,00 for the said purchase price as the down payment and intermediate payment, and the remainder of the land yet to be received is only KRW 34,320,00,00, which is the remainder of 2%. ② The non-party company received the disposal trust documents of the instant land from the Plaintiff immediately after paying the down payment and intermediate payment to the Plaintiff, and the Plaintiff actually completed the transfer registration of ownership to the non-party company in light of the fact that the ownership transfer right of the instant land was transferred to the non-party company on the premise that the ownership transfer right was actually completed on July 15, 2008.

Therefore, the plaintiff's above assertion is without merit.

(2) Judgment on the second argument

In order to reduce capital gains tax pursuant to Article 70 (1) of the Restriction of Special Taxation Act, the relevant farmland must be directly cultivated. However, in light of the fact that the Plaintiff directly cultivated the instant land, it is difficult to believe it as it is, and in light of the fact that the Plaintiff was residing in Incheon which is too distant, and that the Plaintiff was engaged in personal taxi business in Incheon, it is insufficient to recognize it only by the descriptions of Gap 3, 5, and 6 (including paper numbers), and there is no other evidence to prove it otherwise.

In addition, in order to reduce capital gains tax pursuant to Article 70 (1) of the Restriction of Special Taxation Act, the plaintiff must reside in the Si/Gun/Gu where the farmland in question is located, the area within the Si/Gun/Gu where the farmland in question is located, the area within the Si/Gun/Gu adjacent thereto, and the area within 20 km in a straight line from the farmland in question, and as seen earlier, the plaintiff resided in Incheon located in the area located away from the area where the land in this case is located, the plaintiff's assertion is without merit.

3. Conclusion

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