Seoul High Court 2008Nu25748 ( October 14, 2009)

The requirements for taxation of capital gains tax shall be determined at the time of transfer.

The requirements for taxation of capital gains tax should be determined on the basis of the time of transfer, so it does not mean that the capital gains tax calculated based on the initial actual transaction price is determined as the standard market price, even if it falls under the investment district at the time of transfer, but

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

Article 96 (Transfer Price)

Article 104-2 (Designated Area of Income Tax Act)

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

Although all of the records of this case and the judgment of the court below and the grounds of appeal were examined, the argument on the grounds of appeal by the appellant falls under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal, and therefore, the appeal is dismissed under Article 5 of the same Act. It is so decided as per

[Seoul High Court 2008Nu25748 (O. 14, 2009)]

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 736,463,240 against the plaintiff on August 3, 2006 by the defendant shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows, except for the addition of the judgment as to matters newly asserted by the Plaintiff in the trial, and therefore, it is consistent with the reasoning for the judgment of the court of first instance. Thus, it is accepted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of

2. Additional determination

A. The plaintiff's assertion

On November 7, 2008, after the pronouncement of the judgment of the first instance court of this case, the area where the land of this case was located was cancelled in the speculative area, so the transfer value of the land of this case shall also be determined based on the standard market price.

B. Determination

양도소득세는 양도행위를 과세요건으로 하고, 양도차익을 과세대상으로 하는 특성상 그 과세요건은 양도 당시를 기준으로 판정하여야 할 것이다. 그러므로 이 사건 �에 대한 양도 당시 이 사건 토지가 소득세법 제104조의2 소정의 부동산에 대한 지정지역(투기지역) 안에 위치하였다가, 양도일 이후 투기지역에서 해제되었다고 하더라도, 원래 실지거래가액으로 산정한 이 사건 부동산의 양도가액을 기준시가로 재산정하여야 하는 것은 아니다. 따라서 원고의 이 부분 주장은 더 나아가 살필 것 없이 이유 없다.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

[Seoul Administrative Court 2007Gudan9634, 2008.11]

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 736,463,240 for the Plaintiff on August 3, 2006 shall be revoked.

1. Details of the disposition;

A. On May 29, 1975, the Plaintiff acquired on April 21, 1985, shares in the land indicated in the separate sheet No. 2 (hereinafter referred to as “instant land”) among the land listed in the separate sheet No. 10, and acquired on September 15, 1983, shares in the land listed in the separate sheet No. 1 by inheritance.

B. From around 2002, under the recommendation of ○○○○○○○, a land development project was conducted on the recommendation of ○○○○○○○-dong Co., Ltd. with respect to the instant land. On January 24, 2003, the Plaintiff entered into a pre-sale agreement with ○○ Construction Co., Ltd. to sell and purchase the instant land at KRW 4,426,672,00, and the Plaintiff agreed to make a disposal trust registration on the instant land in the name of the trust company for the smooth promotion of the business. Accordingly, the Plaintiff entered into a real estate disposal trust agreement with ○○ Trust Co., Ltd. on March 18, 2003 and completed the registration of ownership transfer on March 24, 203 with respect to ○○○ Construction Co., Ltd. on the said land. As the land development project was conducted, the Plaintiff concluded a sales contract with ○○ Construction Co., Ltd. on the instant land and received the remainder of the purchase price on March 24, 2005.

C. Meanwhile, on August 25, 2004, the area where the instant land is located was designated as an area subject to the transfer income tax based on the actual transaction price. On January 18, 2006, the Plaintiff reported and paid KRW 304,318,040, the transfer income tax calculated on November 10, 2005, based on the premise that the transfer income tax is exempted on November 10, 2005, which is the remaining liquidation date, as the transfer price, under the premise that the land in this case was self-sufficient for more than eight years among the land in this case.

D. On August 3, 2006, the Defendant rendered the instant disposition that determined that the instant land was transferred without satisfying the requirements for self-Cultivating farmland for which the capital gains tax reduction under the Restriction of Special Taxation Act was exempted, and instead, added KRW 13,660,963 to KRW 736,463,240 to the Plaintiff on August 3, 2006.

[Ground of recognition] Facts without dispute, Gap 1 through 6, 12 through 17, Eul 1 and 2 (including paper numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) Of the instant land, seven parcels (attached Form 3, 4, 5, 7, 8, 9, 10) among the instant land shall be exempted from the application of the Act on Special Cases concerning the Restriction on Taxation as amended on December 28, 1998, and the capital gains tax shall be reduced as farmland cultivated for eight or more years by applying the former Income Tax Act prior to the repeal of the non-taxation provision on December 31, 1993, on the grounds that the Defendant’s disposition reported otherwise is unlawful.

(2) The transfer date of the instant land is not November 10, 2005, the balance settlement date, but March 24, 2003, the date of the receipt of trust registration. Therefore, since the instant land was transferred before being designated as an area subject to the imposition of transfer income tax on the actual transaction price, the transfer income tax should be imposed on the basis of the standard market price. Accordingly, the instant disposition otherwise reported is unlawful.

(b) Related statutes;

(Omission)

C. Determination

(1) As to the Plaintiff’s first argument

(A) Article 5 subparagraph 6 (d) of the former Income Tax Act (amended by Act No. 4661 of Dec. 31, 1993) provides that no capital gains tax shall be imposed on self-employed farmland for at least eight years (hereinafter referred to as "self-employed farmland tax exemption provision"). However, upon the amendment of the Income Tax Act by Act No. 4661 of Dec. 31, 1993, the said provision has been abolished, and Article 55 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of Dec. 31, 1993) was newly enacted, but the self-employed farmland exemption provision was enacted under Article 69 of the Restriction of Special Taxation Act (amended by Act No. 5584 of Dec. 28, 1998) and the provisions were applied to the self-employed farmland exemption provision from January 1, 199 and thereafter.

As can be seen, if the revised Act is a specialized law, it is the same as the repeal of the existing law and the enactment of a new law. Meanwhile, even if the revised tax law applies the previous provisions favorable to taxpayers for the purpose of acquiring rights or protecting trust of taxpayers based on the transitional provisions of the specialized law, even if the previous provisions, which were effective at the time of the act of cause before the establishment of the tax liability, do not expressly stipulate that the tax exemption, exemption, or deferment of taxation based on the act of cause, even if the former provisions, which were effective at the time of the act of cause prior to the establishment of the tax liability, have trusted the tax exemption, etc. based on the previous provisions, this is merely merely merely a simple expectation, and it cannot be deemed as a substitute for the right of acquisition, and therefore, it cannot be deemed that it should be protected accordingly. Thus, Article 6(d) of the former Income Tax Act (amended by Act No. 4615, Dec. 31, 193) applies to the farmland transferred after January 1, 199.

(B) Meanwhile, Article 5 of the Addenda of the former Income Tax Act (amended by Act No. 4661 of Dec. 31, 1993) provides that "the income tax that was imposed or should be imposed pursuant to the previous provisions prior to the enforcement of the Act shall be governed by the previous provisions." However, as seen thereafter, since the land of this case was transferred on Nov. 10, 2005 and its taxation requirements for transfer income tax were met, the transfer income tax on the land of this case shall not be deemed as "income tax that was imposed or should be imposed pursuant to the previous provisions before the enforcement of the Act" under Article 5 of the Addenda. Accordingly, it shall not be deemed that Article 5 subparagraph 6 (d) of the former Income Tax Act (amended by Act No. 4661 of Dec. 31, 1993) shall be applied.

(C) If so, there is no evidence that the transfer income tax shall be reduced or exempted for the transfer of the instant land by a resident prescribed by the Presidential Decree who resides in the location of the instant land pursuant to Article 69(1) of the Restriction of Special Taxation Act, and it constitutes a case of direct cultivation for not less than eight years by a resident. Thus, the transfer income tax shall not be reduced or exempted pursuant to the above provision.

(2) As to the second argument by the Plaintiff

The term "transfer" under the Income Tax Act means that an asset is actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of the asset (Article 88(1) of the Income Tax Act). The Plaintiff entered into a real estate disposal trust contract with the KOOOO trust company on March 18, 2003 and completed the registration of ownership transfer due to the above trust with the KOO trust company on March 24, 2003. The Plaintiff did not receive any payment related to the above registration of ownership transfer from the KOO trust company. The KOO trust company, which received the registration of ownership transfer due to the trust, bears the duty to manage and dispose of the real estate of this case within the scope of the trust purpose, and cannot be deemed to have transferred the disposal authority of the land of this case. In full view of the fact that the registration of ownership transfer due to the above trust is to be completed, it cannot be deemed that the transfer date of the land of this case does not constitute "transfer" under the Income Tax Act.

(3) The Defendant’s disposition of this case, which reported the date of transfer as of November 10, 2005 without applying the capital gains tax reduction or exemption provisions to the land transferred without satisfying the requirements for self-arable farmland for which the capital gains tax reduction or exemption under the Restriction of Special Taxation Act was granted, is legitimate, and no other grounds for determination are found.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed for reasons.