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(영문) 특별공급가액에 공급된 공급대상토지(또는 그 분양권인 조개딱지)의 취득가액을 '0원'으로 보아 청구인의 경정청구를 거부한 처분의 당부(취소)
조세심판원 조세심판 | 2009-11-26 | 조심2009중1332 | 양도
[Case Number]

early 209 Heavy132 ( November 26, 2009)

[Items]

Transfer

[Types of Decision]

Revocation

[Summary of Decision]

It is reasonable to see that the acquisition value of a breable area is the same as or higher than the transfer value of the applicant, and it is reasonable and reasonable to regard that capital gains under the Income Tax Act have not accrued due to the transfer of the breable area by the applicant.

[Related Acts]

Article 94 of the Income Tax Act / Article 162 of the Enforcement Decree of the Income Tax Act / Time of Transfer or Acquisition of / Requests for the Correction of Hyll, etc.

【Reference Decision】

207 middle 4069/2007 middle 4069/ 2007 middle 4069/

【Disposition】

The rejection disposition against an application for correction of KRW 12,352,50 for the transfer income tax for the year 2006 filed by the head of the OOO on February 18, 2009 shall be revoked by deeming that the transfer income amount under Article 95 of the Inheritance and Gift Tax Act has not occurred by the transfer of the applicant's O fishing life countermeasure site (or the right of sale).

【Reasoning】

1. Summary of disposition;

(a)When the claimant who has been engaged in fishing (mining and gathering) in OO Metropolitan City lost means of livelihood as an OO new city reclamation project (hereinafter referred to as "O reclaimed project") in OO Metropolitan City, the OO Metropolitan City Mayor entered into an agreement with the claimant for special marketing of land within the O reclaimed area (hereinafter referred to as "the Agreement on Countermeasures in 1997") in April 197, as a compensation for the loss of fishing (mining and gathering) rights.

(b)O-Metropolitan City Mayors (former OBA) concluded a land supply contract (hereinafter referred to as "special supply contract in 2005") with OBA and made a down payment on April 28, 2005 to fishermen, including applicants, in accordance with the above agreement, for special supply price (125 per cent of the land reclamation cost). The claimant, as a result of the lottery, assigned OOBO-dong 1027-1 land (hereinafter referred to as "land to be supplied") at OB-dong 1027-1 land (hereinafter referred to as "land to be supplied"), and made a contract for land supply (hereinafter referred to as "special supply contract in 2005").

C. On April 17, 2006, the claimant transferred the right to sell the land to be supplied for sale (hereinafter “the date of entering into a contract for change of the name of the land for countermeasures against O fishing residents”) between the applicant, transferee, and OO Metropolitan City Mayor (hereinafter “the date of entering into a contract for change of the name of the land for countermeasures against O fishing residents”) to KRW 70,000,000, and filed a voluntary report and payment of capital gains tax of KRW 12,352,50 (transfer value of KRW 70,000,000, acquisition value of KRW 70,000), but the claimant filed a claim for correction of the same issue (the transfer value of KRW 70,352,50 won, acquisition value of KRW 356,260,250).

(d) The disposal authority rejected an applicant’s request for correction on February 18, 2009, on the ground that it is reasonable to regard the time of acquisition as the initial date of granting the right, and the acquisition value accordingly is zero won, on the ground that the applicant’s request for correction is difficult to regard the applicant as a legitimate filing authority, as well as because the applicant did not report the transfer income tax within the statutory due date of return even though he/she transferred the breabbbing area.

E. The claimant appealed and filed an appeal on February 25, 2009.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

In recent cases related to the fishing life countermeasure site supplied by the Tax Tribunal as compensation for the promotion of the O reclamation project, i.e., the time of acquisition of the above countermeasure site is the special supply contract in 2005, and the acquisition price is the value of the land at the time of the acquisition (including the cost of loss of fishery right) and the taxpayer's claim is accepted and decided by the OO resident, the same logic should also be applied to the applicant who acquired and transferred the Doggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggging site

(b) Opinions of disposition agencies;

In accordance with the purport of the decision of the Tax Tribunal, the claimant asserts that the date of acquisition of the land of the land of the land of the land of the land of the land of the 2005 special supply contract shall be the date of the land of the land of the 2005. However, considering that the land of the land of the land of the land of the OO fishery residents is entitled to the right to purchase the land as part of livelihood compensation due to loss of fishery right according to the reclamation of public waters, this constitutes the "right to acquire real estate" under the Income Tax Act, which is the right to acquire real estate, the recently the Ministry of Strategy and Finance has recently received the reply that "the date of acquisition of the right to acquire real estate" from the Ministry of Strategy and Finance shall be deemed "the date of concluding an agreement for countermeasures against fishery residents" (Article -143, January 28, 2009). Therefore, considering the fact that the disposition agency considers the acquisition date of the land of the O fishery residents as the date of the

3. Hearing and determination

A. Key issue

The propriety of the disposition rejecting the applicant’s request for correction by regarding the acquisition value of the land to be supplied to the special supply value (or the land subject to the sale of the land (or the land subject to the sale of the land), as “0 won” as part of the O fishery living measures

B. Relevant statutes

(1) Article 94 of the Income Tax Act (Scope of transfer income) (1) Transfer income shall be the following incomes generated during the year:

1. Income accruing from transfer of land (referring to a lot of land subject to registration of land category in the cadastral record under the Cadastral Act) or buildings (including the facilities and structures annexed to such buildings);

2. Income accruing from transfer of any right to the real estate falling under any of the following items:

(a)the right to acquire immovable property (including the right to acquire a building upon completion of its construction and its appurtenant land);

(hereinafter omitted)

Article 95(2)(1) The transfer income amount shall be the amount calculated by deducting the special long-term holding deduction amount from the amount (hereinafter referred to as “transfer marginal profits”) obtained by deducting necessary expenses pursuant to the provisions of Article 97 from the total income amount of transfer income pursuant to the provisions of Article 94 (hereinafter referred to as “transfer value”).

Article 96(1)(1) The transfer value of assets under Article 94(1)1 and 2 shall be based on the standard market value at the time of transfer of the assets concerned: Provided, That where the assets concerned fall under any of the following subparagraphs, it shall be based on the actual transaction value between the transferor and transferee (hereinafter referred to as “actual transaction value”):

1. Where the relevant assets are a house (including the land appurtenant thereto) satisfying the criteria for expensive houses under the provisions of subparagraph 3 of Article 89;

2. Where the relevant assets are rights to acquire real estates under the provisions of Article 94 (1) 2 (a);

Article 97 (Calculation of Necessary Expenses for Transfer Income) (1) Necessary expenses to be deducted from the transfer value in calculating transfer marginal profits of residents shall be as follows:

1. Acquisition value:

(a) In case of assets as prescribed in Article 94(1)1 and 2, the standard market price at the time the assets are acquired: Provided, That in case where the assets concerned fall under any of subparagraphs of Article 96(1), it shall be based on the actual transaction price required for the acquisition of such assets;

Article 98 In calculating gains on transfer of assets, the time of acquisition and transfer shall be determined by Presidential Decree.

Article 110 (Final Return on Tax Base of Transfer Income) (1) Any resident having any transfer income amount during the current year shall make a return on the tax base of transfer income to the chief of the district tax office having jurisdiction over the place of tax payment from May 1 to 31 of the year following the current year (from May 1 to 31 of the year following the year in which permission is granted for land transaction contract in cases falling under the proviso of Article 105 (1) 1) as prescribed

(2) The time of acquisition and transfer pursuant to Article 162 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008) (1) The date of acquisition and transfer pursuant to Article 98 of the Act shall be the date of liquidation of the price of the assets (in case where the transferee agrees to pay the capital gains tax and the additional tax on capital gains tax on the transfer of the assets, excluding the relevant capital gains tax and the additional tax on the capital gains

1. The date of registration, receipt of registration, or transfer of a holder of a transfer, where the date of settlement of price is not clear;

3. The date of receipt, delivery, or use and profit-making date, in cases of a long-term installment plan as prescribed by the Ordinance of the Ministry of Finance and Economy.

(2) Where assets are transferred or acquired, and the object is not completed or finalized by the date of liquidation of the price of the assets, the date on which the object is completed or finalized shall be deemed the date of such transfer or acquisition.

(3) A person who has filed a tax base return within the statutory due date of return falls under any of the following subparagraphs. (1) A person who has filed a tax base return within the statutory due date of return may request the head of the competent tax office to file a request for the determination or correction of the tax base and amount of national tax (where any determination or correction is made under the tax-related Acts, referring to the tax base and amount of tax after such determination or correction is made) within three years after the statutory due date of return elapses (where any determination or correction is made under the

1. Where the tax base and tax amount entered in the tax base return (referred to the tax base and tax amount after such decision or correction is made, if such decision or correction is made under the provisions of each tax-related Act), exceed those to be returned under the tax-related Acts;

C. Facts and determination

(1) In full view of the review data of this case, the following facts are confirmed:

(A) The following are the reasons why the applicant acquired and transferred the landscape-based area:

1) The OOO Metropolitan City Mayor was approved by the Minister of Construction and Transportation at the time as a project executor to construct the OO new city on November 12, 1990.

2) According to the result of the advice of the "Correction Coordination Committee", a temporary civil petition coordination body, which is a temporary civil petition coordination body, the OO Metropolitan City Mayor agreed to supply approximately 165 m20 m2 to the above fishermen, and accordingly, entered into an individual arrangement (the "Countermeasures Agreement 1997" referred to in the above mentioned) with each fishermen on April 197.

3) AO reclaimed project was approved for use in May 2004, and around July 2004, the reclaimed land was registered for preservation of ownership in the name of OO Metropolitan City Mayor, and on December 10, 2004, OO Metropolitan City Mayors and fishermen’s representatives agreed on the partial modification and allocation method of the initial agreement on the supply of land.

4) On December 27, 2004, the OOO Metropolitan City Mayor announced the supply of land for the daily life countermeasures against O new city fishermen. On March 12, 2005, upon the application of fishermen’s desired land, the land to be supplied was selected and allocated by lottery, and after April 2005, the fishermen including applicants entered into a land supply contract (the “special supply contract of 2005” referred to above) individually with fishermen including applicants.

(b)The details of the 1997 Countermeasure Agreement concluded between the petitioner and the OO Metropolitan City Mayor are as follows:

1) The purpose of this Arrangement is to specially supply land to the small-scale fishermen who have become unable to maintain their livelihood due to the OO new city development project, in order to prepare the professional measures that enable them to be able to benefit substantially, and the subject of the land supply is the households that maintain their livelihood with fishery in the project district prior to the date of approval of the reclamation license of public waters on November 12, 1990 (Article 1).

2) With respect to the timing of appraisal and supply conditions, the period of appraisal price determination shall be based on the period of 80 percent of the progress of a project to create a new market site in a unit district (construction district) after the detailed plan is determined, and the supply price shall be 80 percent of the appraisal price, and the supply price shall be at the rate of appraisal price equivalent to 125 percent of the development cost if the development cost is above 125 percent, and the payment shall be made at the rate of appraisal price equivalent to 125 percent from the date of conclusion of the contract, and at the time of conclusion of the contract, 10 percent of the land price as the down payment

3) To cooperate with fishermen in determining their actual interests (a price less than the general sale price), and with respect to the methods and timing of a contract, the method of land supply contract shall be the method of individual private contract based on the individual master group by fishing village fraternity as set out in Article 1 after the supply price is determined (Articles 4 and 5).

4) As to the consent to use of land and the transfer of ownership, after entering into a free contract for land supply as prescribed in Article 5, the OO Metropolitan City Mayor shall consent to use of the land from the time of payment in installments, and the transfer of ownership of the supplied land shall be registered in the name of the first contractor after preservation is registered in the name of the OO Metropolitan City Mayor (Article 6).

5) With respect to the determination of the location of the supplied land, the OOM shall determine the area of the land to be supplied to fishermen by section and notify the fishermen’s representatives within two years after the conclusion of the agreement or immediately after the determination of the detailed plan, and the method of determining the location of the land to be supplied by each individual shall be determined by fair lot (Article 7) in accordance

(C) The main contents of the special supply contract concluded between the claimant and the OO Metropolitan City Mayor in 2005 are as follows: “The location of the land to be supplied is the land equivalent to 125% of the reclamation cost, and the purchase price is the land equivalent to 125% of the reclamation cost. The OO Metropolitan City Mayor shall receive the full purchase price from the claimant, transfer the ownership of the target land, and if the first contractor applies for the full payment of the purchase price, the change of the contractor’s name shall be permitted only once.”

(D) On April 17, 2006, the claimant, the transferee, and the head of theO or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head of the O or the head office

(E) The appraisal results of the standard before and after 2005 on the neighboring land of the land to be supplied are as follows: (a) the value of ten neighboring land with the utility value similar to that of the land to be supplied is the level from 2,280,000 to 3,60,000 won per square meter depending on the difference in utility value; (b) barring special circumstances, the appraised value of the land to be supplied in 2005 and the land subject to the 2005 m20,000 (i.e., 165 m2,280,000 m2,000 m2,280 m2,000 (i.e., 165 m2 x 3,60,000 m2) shall be deemed to be between the appraisal value of the land to be supplied and the land subject to the 2005 m2.

(f) As a reference, the agency has provided guidance on capital gains tax to fishermen, including applicants, on July 2005 and December 2006 with respect to the transfer of Chobun land. However, in 205, the term “on the basis of the transfer of fish life countermeasure land” means that “on the basis of the purchase of Ob fishing countermeasure land (one name): the thickness is transferred to a third party; and the change of the name has been verified at the Obune Economic Zone Administration. The transfer of the right to your real estate is confirmed to have the right to receive capital gains tax pursuant to Articles 105 and 110 of the Income Tax Act on the remaining date of acquisition of the right before the date of acquisition of the right to receive the transfer income tax is confirmed to have not yet reported the transfer income tax on the date on which the right to receive the transfer income tax was determined to have been acquired by sale before the date on which the right to obtain the original report was determined to have the right to receive the transfer income tax on the original date of acquisition by sale and under the name of 20 years of return or payment.”

(2) In full view of the above facts and the relevant laws and regulations, we examine whether the rejection disposition by the disposition agency against the request for correction filed by the claimant is lawful and reasonable.

(A) On the premise that the time of acquisition of the 1997 development-related area is the time of acquisition of the 1997 development-related area, the dispositive agency has no amount invested in the acquisition of the 1997 development-related area, and thus, the acquisition value of the 200 development-related area is zero won, so the Claimant’s request for correction by the Claimant demanding the recognition of acquisition value cannot

(B) However, in calculating gains on transfer of assets, the acquisition value deducted from the transfer value is the actual transaction value required to acquire the relevant assets. Therefore, it is reasonable to include the difference between the market value and the purchase value of the relevant land sold from a project operator due to the implementation of the reclamation project of public waters in principle. However, if the purchase value of the relevant land is lower than the market value at the time and the difference between the market value is a cost for loss of fishery rights, it is reasonable to include the difference from the market value in addition to the sale value (it refers to the same meaning as the national court's 2007 mid 4069, June 23, 2008). In this case, according to the countermeasures agreement in 197 and the special supply contract in 2005, it is confirmed that the applicant has acquired the renewal of the renewal of the designation plan in return for loss of fishery rights. Thus, it is reasonable to include the difference between the market value and the sale value of the relevant land purchased from the project operator as a compensation for loss of fishery rights.

(C) In addition, according to Article 162(2) of the Enforcement Decree of the Income Tax Act, if the object is not completed or finalized until the date the price of the relevant asset is settled, if the object is not completed or finalized, such object shall be considered to be acquired. In the case of the landscape-related area (or the land to be supplied), since the land is supplied to the claimant as part of livelihood compensation for the claimant having fishery right according to the implementation of the reclamation project of the OO Metropolitan City, it is reasonable to view the time the location, lot number, land category and area of the landscape-related area (or the land to be supplied) are specifically determined by the contract, etc. entered into with the project operator as the time the location, lot number, land category and area of the land is determined (the same purport is the time the acquisition price of the land in question is determined by the agreement in 197 and the price, lot number, land category and area of the land to be supplied is not determined at all more than the market price of the land to be determined by the 20-year area.

(D) Ultimately, in cases where the compensation for loss of fishery rights due to reclamation of public waters is paid in cash, even though the value of fishery rights has increased when compared with the time of the 1997 countermeasure agreement, it is reasonable to view that the acquisition value of the Appellant area is equal to or greater than the transfer value (70 million won) of the claimant when considering the fact that the time value according to the delay in compensation (i.e., compensation) has been reflected, and that the acquisition value of the Appellant area shall be deemed as the result of reflecting the time value according to the delay in compensation (i.e., the Appellant area). Thus, in this case, the transfer income amount pursuant to the provisions of Article 95 of the Appellant Act by the transfer of the Claimant area shall be deemed not to have occurred. Thus, it is deemed that the Appellant Office erred in the disposition of refusing the request for correction by deeming the transfer value of the Claimant area as the transfer income amount due to the transfer of the Appellant area as 0 won.

4. Conclusion

This case shall be decided as ordered in accordance with Article 81 and Article 65 (1) 3 of the Framework Act on National Taxes, because the petition for a trial is well-grounded as a result of the review.

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