Where the title of the inherited property registered under another person’s name was restored, the time of commencement shall be the time of partition.

In cases where a co-owned share transferred from a partition of co-owned property, which does not substantially fall under the transfer of assets, is transferred for consideration after consideration, the acquisition value of the co-owned share should be determined based on the first time of acquisition of the co-owned property, and it is not determined based on the time of transfer of formal co-ownership.

Article 162 of the Enforcement Decree of Income Tax Act

2019Guhap706 The revocation of revocation of a request for correction of the tax base and amount of tax

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○ Head of tax office

September 26, 2019

October 17, 2019

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant's rejection of a claim for correction against KRW 179,539,150 and KRW 4,461,330 of the gift tax for the year 2015 owed to the plaintiff on October 15, 2015 shall be revoked.

1. Details of the disposition;

(a) Acquisition, etc. of land ownership by inheritance of the plaintiff;

1) On March 21, 2001, ○○○○-dong (before the change of the name of the administrative district on March 21, 2001, hereinafter referred to as “○○○○-Gun ○○○○○○-dong,” regardless of whether it was before or after the change of the name of the administrative district; hereinafter referred to as “○○-si ○○-dong”) was the land on which the Plaintiff, the fleet for the purchase of the land, was under circumstances.

2) However, on November 26, 1970, this B and thisCC completed the registration of preservation of ownership of 43,736 square meters of 00 square meters of 00 ○○dong, ○○○-dong, as co-ownership (each co-ownership part), and on May 15, 1982, the above ○○○○-dong, ○○-dong, A, 43,736 square meters of 21,86 square meters of 21,868 square meters of 21,868 square meters of 00,000 and the above ○○○-dong, ○○-dong, ○○-dong, ○○-dong, 21,868 square meters of 21,868 square meters, and completed the registration of ownership transfer of the above ○○-dong, ○○-dong, ○○-dong, 21,868 square meters of 21,000 square meters.

3) On January 10, 1937, Lee Dong-dong died and Lee Dong-dong succeeded to his own property solely, and on May 15, 1958, Lee Dong-nam died and Lee Dong-nam succeeded to his own property solely. On August 22, 1970, Lee Dong-dong's heir, the plaintiff et al. died, and on February 2, 2000, the plaintiff et al. entered into an agreement on the division of inherited property solely owned by the plaintiff on the premise that this is inherited property.

4) On May 200, the Plaintiff filed a lawsuit seeking the registration of ownership transfer under the name of ○○○○ Dong ○○○, ABA forest 19,772 square meters, and filed a final judgment on November 26, 1970 with respect to the ownership transfer registration under the above BB, the name of CC, and the ownership transfer registration under the above BB on June 3, 1982, against the heir of ○○ District Court 2000 Ga 2000 Ga, ○○○○○○ District Court 2000 Ga, 19,72 square meters of the above ○○○ Dong, and the registration of ownership transfer under the name of 19,772 square meters of the above BB, which became final and conclusive on June 13, 1982, and the said judgment was rendered on June 17, 1972.

On May 6, 2010 in accordance with the above final judgment, the registration of correction of registration of preservation of ownership was completed on July 27, 2004 with respect to the above ○○-dong ○○○-dong Ga 18,769 square meters of forest land (the above ○○○-dong Ga 19,772 square meters of forest land was divided into 18,769 square meters of forest land and the above ○○-dong Ga 18,000 square meters of forest land and the above ○○-dong Ga 18,000 square meters of forest land and the above ○○-dong MaB-dong 1

(b) Co-owned partition;

1) On February 16, 2011, the Plaintiff filed a lawsuit for partition of co-owned property against B, △△ District Court 00 Ga 000,000, and received a judgment on February 16, 201, regarding 18,769 m2, 000 m2, 000 m2,000, 000,000,000,000,000 m2,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000.

2) On November 17, 201, the Plaintiff, based on the judgment on partition of co-owned property in the instant case, completed the registration of ownership transfer based on the above co-owned property partition as to the above ○○○○-dong c forest 9,385 square meters in the Plaintiff’s name.

(c) Payment, etc. of real estate sales and transfer acquisition tax;

1) The above ○○○○ Dong d Forest land (hereinafter “instant land”) is the land divided into 876 square meters and divided into 0,385 square meters and 0,000 square meters.

2) On November 13, 2014, the Plaintiff sold the instant land at KRW 516 million to HongF, and completed the registration of ownership transfer for the instant land in the future of HongF on that day.

3) On February 2, 2015, the Plaintiff, after the said transfer, reported and paid KRW 126,574,400 capital gains tax to the Defendant on August 22, 1970, the date of acquisition of the instant land, which was the date of commencing the inheritance ( January 1, 1985, the date of commencing the inheritance) and the acquisition value was converted into the acquisition value (40,064,533 won).

D. Plaintiff’s request for correction and Defendant’s rejection disposition

1) On November 19, 2018, the Plaintiff filed a request for correction to refund capital gains tax of KRW 126,574,400 on the premise that the acquisition date of the instant land was not on November 17, 2011, the date of acquisition of the instant land, but on November 17, 2011, the date of registration of ownership transfer in the Plaintiff’s sole name, based on the instant judgment on partition of co-owned property, which was not on the date of commencing the partition of co-owned property.

2) On January 7, 2019, the Defendant rendered a disposition rejecting the Plaintiff’s request for correction by deeming the time of acquisition of the instant land as the date commencing the inheritance (hereinafter “instant refusal disposition”).

3) On January 22, 2019, the Plaintiff filed an appeal with the Tax Tribunal against the Defendant’s instant rejection disposition, but the Tax Tribunal dismissed the Plaintiff’s appeal on May 15, 2019.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 6, Eul evidence 1 to 4 (including additional number, if any; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff, which is the mother land of this case, acquired 9,385 square meters of the above c c c c c c c c c c c c 385 square meters by the judgment of partition of this case. Thus, the acquisition date of the land of this case divided from the above shall be November 17, 201, which is the registration date of ownership transfer in the Plaintiff’s sole name pursuant to the judgment of partition of this case. However, on February 2, 2015, when the Plaintiff reported and paid the transfer income tax following the transfer of the land of this case on February 2, 2015, the Plaintiff calculated the acquisition value (converted value) by applying the acquisition date of the land of this case as the commencement date of inheritance, and paid KRW 40,064,574,400 based thereon. However, the acquisition date of the land of this case to the effect that the Plaintiff refused to pay the transfer income tax of this case to the Plaintiff as the registration date of partition of co-owned property of this case.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Relevant legal principles

A) Even if one of the co-inheritors acquires the property exceeding his/her own share of inheritance as a result of an agreement on the inherited property by division among co-inheritors, the division of the inherited property is retroactively effective at the time of the commencement of inheritance, and thus, it shall be deemed that it was directly succeeded from the inheritee at the time of the commencement of inheritance (see, e.g., Supreme Court Decisions 92Da32463, Oct. 27, 1992; 2017Da265631, May 10, 2019).

B) According to Article 88 subparag. 1 of the former Income Tax Act (amended by Act No. 14389, Dec. 20, 2016), “transfer income tax” means the de facto transfer of an asset through sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of the asset. Capital gains tax imposed on the transfer of the asset is imposed on the income accruing from the increase in the value of the asset belonging to the owner, and the opportunity to transfer the asset to another person is imposed on the income. In order to impose capital gains tax, there must be a transfer of the asset. The division of the original common property is legally deemed the exchange or sale of shares between the co-owners. However, in substance, the right, i.e., the right acquired by the division of common property, which is limited to the specific part acquired by the division, and its form is changed. Thus, it does not constitute a co-owned share transfer of 201 after the acquisition of the first co-owned share (see, e.g., Supreme Court Decision 2001Du394).

2) Specific determination

In this case, the Plaintiff solely inherited 1/2 shares out of 40 0,000 square meters of 30,000 square meters of 42,000 square meters prior to the division by agreement with other co-inheritors. The division of inherited property through consultation takes effect retrospectively at the time of commencement of inheritance, and even according to Article 98 of the former Income Tax Act and Article 162(1)5 of the Enforcement Decree of the same Act, “the date inheritance commences or the date of receipt of gift” is considered to be the time of acquisition as to the assets acquired through inheritance or donation. Thus, the Plaintiff cannot be deemed to have acquired the ownership of 1/2 from 30,000 square meters of 4,000 square meters of 4,000 square meters of 5,000 square meters of 30,000 square meters of 4,0000 square meters of 30,000 square meters of 4,000 square meters of 30,000 square meters of 97.

Therefore, when calculating gains from transfer from the transfer of the instant land, which was divided into 00 square meters of 19,772 square meters of forest land in ○○○ Dong, Masan, and 19,772 square meters, the acquisition time of the instant land should be deemed not on November 17, 201, but on August 22, 1970, the date of acquisition of the first common property, namely, the date of acquisition of the first common property, rather than on November 17, 201, the date of registration of ownership transfer under the judgment on partition of co-owned property in this case, based on the judgment on partition of co-owned property in this case.

Ultimately, the instant disposition is lawful, and the Defendant’s assertion on a different premise is without merit.

3. Conclusion

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