Where the mortgaged real estate is transferred to a third party with respect to the security for realization settlement-type transfer, and the price is appropriated for performing the secured obligation, whether or not capital gains have been generated.

If the secured party transfers the mortgaged real estate to a third party through the realization and appropriating it for the repayment of the secured obligation with the consideration for such transfer, in the actual aspect of ownership, the secured party is not holding the ownership of the mortgaged real estate, but merely holding the security right, thereby obtaining the satisfaction of the claim. Meanwhile, in the aspect of formal and external ownership, it cannot be deemed that the secured party has gained the ownership of the mortgaged real estate and transferred it to a third party. Meanwhile, even if there is a balance after deducting the principal and interest of the secured obligation equivalent to necessary expenses from the proceeds of transfer, even if there is the balance after deducting the principal and interest of the secured obligation equivalent to the necessary expenses from the proceeds of transfer, it cannot be deemed that there is capital gains subject to capital gains tax.

Article 372 (Transfer by Security of Civil Act), Article 4 (1) 3, and Article 23 of the Income Tax Act.

Plaintiff

Daejeon director of the tax office

Seoul High Court Decision 83Gu323 delivered on January 13, 1984

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal by the defendant litigant are examined.

1. In the course of liquidation settlement, in a case where a secured party transfers the mortgaged real estate to a third party by realizing it, and appropriated it for repayment of secured obligation with the consideration for such transfer, the secured party in the aspect of real ownership is not holding the ownership of the mortgaged real estate, but merely holding the security right and thereby obtaining satisfaction of claims, it cannot be deemed that the secured party has earned income from capital gains tax, which is subject to capital gains tax. Meanwhile, in the aspect of formal ownership, the creditor can be deemed to have acquired the ownership of the mortgaged real estate, and transferred it to a third party. Meanwhile, even if there is a balance after deducting the principal and interest of secured obligation equivalent to necessary expenses from the proceeds of transfer, such transfer is in the nature of returning it to the debtor, and even in this case, even if there

2. According to the facts duly established by the court below, the plaintiff lent 20,000,000 won interest rate of 3% per month to the non-party 1, and as a security, the plaintiff completed the provisional registration of the preservation of the right to claim ownership transfer on the real estate in this case owned by the non-party 1, and after completion of the principal registration after the due date, sold 40,000,000 won to the non-party 2 and appropriated it for the repayment of the amount of the claim.

According to the above facts, since it is clear that the Plaintiff sold the above real estate as a mortgagee by the realization of the collateral, even if there is a balance remaining after deducting the principal and interest of the loan from the purchase price, it cannot be viewed as capital gains that will belong to the Plaintiff. Therefore, it is clear that the Plaintiff is not subject to capital gains tax.

However, the lower court deemed that KRW 3,650,685, which deducts KRW 10,500,000 from the above purchase price of KRW 40,000,00 for the obligation to return the deposit and KRW 25,849,315 for the secured obligation, as gains from transfer to the Plaintiff, and calculated the transfer income tax amount and the defense tax amount, and only the excess portion is maintained within this scope, and revoked the Defendant’s transfer income tax of this case and the defense detailed and disposition. While the above disposition was maintained, the part of maintaining the above disposition can be deemed as erroneous but the appeal filed only by the Defendant cannot be a ground for reversal, the original decision cannot be maintained.

The issue is that the lower court erred in recognizing the amount of the secured debt principle and the amount of the obligation to return the deposit for lease on a deposit basis, which shall be deducted from the purchase price of the real estate of this case, as seen above, but the remaining amount of the deduction cannot be deemed as the Plaintiff’s capital gains, so it is not reasonable to consider the error.

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Lee Sung-soo (Presiding Justice)