Seoul Administrative Court 2012Gudan14128 ( November 14, 2012)

early 2012west0477 (2012.04.10)

The disposition that considers that the apartment was not pre-saleed is legitimate

In light of the fact that there was approval for the use of apartment at the time of transfer of the right to sell apartment and the registration for preservation of ownership was completed in the name of the selling company, the unpaid sale price was extremely poor in light of the total sale price, and the economic ability to pay the remaining sale price at the time is deemed to have been sufficient, etc., the disposition taken by deeming that

2012Nu39782 Revocation of Disposition of Imposing capital gains tax

HongAAA et al.

Head of Yongsan Tax Office

Seoul Administrative Court Decision 2012Gudan14128 decided November 14, 2012

May 9, 2013

June 13, 2013

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance is revoked. The Defendant’s imposition of KRW 000 of the transfer income tax corresponding to the year 2006 against Plaintiff HongA on October 1, 201 and the imposition of KRW 000 of the transfer income tax corresponding to the year 2006 against Plaintiff HongB shall be revoked.

1. Quotation of the reasons for the judgment of the first instance;

The reasons why the court should explain in this decision, and in addition to adding the determination of the plaintiffs' arguments in Section 2 below, it is identical to the reasoning of the judgment of the first instance, and thus, in accordance with Section 2 of Article 8 of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Additional determination

A. Summary of the plaintiffs' assertion

In interpreting "the date of liquidation", which is the basis for imposing capital gains tax, the date of acquisition, the actual liquidation is permitted and expanded based on the concept of "actual transfer", which can be seen as stipulated in Article 88 (1) of the Income Tax Act, and the interpretation is in violation of the principle of strict interpretation of the no taxation without law or the regulations under the Constitution, and the meaning of the date of liquidation should be deemed to be the time when the real estate purchase price (sale price) is fully paid. Accordingly, each of the dispositions of this case based on different premise

B. Determination

(1) In addition, the term "transfer" under Article 104 (3) of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006, hereinafter referred to as the "Income Tax Act") which applies to each disposition of this case means that a person who acquires assets under Article 94 (1) 1 and 2 of the Income Tax Act transfers the assets without the motive for acquiring the assets, and that person who acquires assets under Article 94 (1) 1 and 2 of the Income Tax Act includes the right to acquire the buildings and their appurtenant land when the building is completed under Article 94 (1) 2 (a) of the Income Tax Act, so the right to purchase the buildings and their appurtenant land also falls under "property that can be unregistered transferred." Furthermore, the term "transfer" under Article 88 (1) 1 of the Income Tax Act means that the assets are actually transferred for sale, exchange, etc. without regard to the registration or transfer of the assets, and that assets are actually paid for payment of the assets in question, regardless of the purport of the above provision.

(2) The above facts are as follows; (i) the use of the apartment of this case was approved at the time of the sale of this case; and (ii) the sales price of the apartment of this case was less than 2.3% of the total sales price to be paid by the plaintiffs in the name of the sales company; and (iii) the plaintiffs were not more than 9% of the sales price of the apartment of this case, and the remaining sales price of this case was less than 170.06 square meters at the time of transfer of the sales price of this case. The plaintiffs were not more than 1/200 of the sales price of this case, and there was no possibility that the plaintiffs would have paid the remaining sales price of the apartment of this case under the former Enforcement Decree of the Income Tax Act as 100 square meters under the condition that the above transfer price of this case was unconstitutional, and there was no possibility that the plaintiffs would have paid the remaining sales price of the apartment of this case under the condition that the above transfer price of this case was less than 1/2 of the sales price of this case.

Conclusion

Then, all appeals by the plaintiffs are dismissed, and it is so decided as per Disposition.