National High Court Decision 199Do1323, December 13, 1999
It is recognized that the property jointly formed by the couple was divided by division of property between the divorce parties based on the right to divide the property between the divorce parties, and thus the transfer tax should be imposed on the property.
Article 88 of the Income Tax Act (Definition of Transfer)
The tax office of Gangnam-gu shall vest in the year 1996, the claimant of January 5, 1999
The imposition of capital gains tax of KRW 15,432,240 shall be revoked.
1. Outline of the original disposition;
The claimant registered the transfer of ownership on the ground of donation to OO, other than the claimant's former wife on August 21, 1996, of the Gangnam-gu Seoul Metropolitan Government site located in OOOOOOOO, and multi-household housing 92.7 square meters (hereinafter referred to as "multi-household real estate").
With respect to the transfer of ownership of the real estate at issue, the disposition agency considered that the claimant paid the outstanding real estate to OOO other than the claimant for consolation money, and calculated the transfer margin according to the standard market price, and notified the claimant of the transfer income tax of 15,432,240 won for the transfer income tax belonging to the year 1996.
On February 25, 1999, the claimant appealed against the above disposition and filed an appeal for adjudication on June 22, 199.
2. Opinions of the applicant and the Commissioner of the National Tax Service;
As confirmed by the claimant in the decision of the National Tax Service on the request for review by the National Tax Service, the transfer of ownership of the real estate in question is simple consolation money and all matters in preparation of the divorce agreement were entrusted to the claimant and did not participate in it. However, the former wife is currently in the U.S., and the term of divorce-related data or division of property is well-known and generally accepted as the claimant, such as the applicant, and it is not common property formation or division because it delegated the applicant to prepare a divorce agreement and did not have proper documents due to the light of the situation and lack of knowledge. Furthermore, the claimant has opposed to the divorce, and the applicant has made many concerns and efforts to prevent the settlement of family due to divorce until the end, but even though the applicant has a firm decision of the former wife and made efforts to divorce by arranging the family register
If the claimant did not jointly form the property, he/she did not pay for divorce charges while divorced until the end, but the claimant did not pay it. But the claimant has difficulty in forming the property from the hole to the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right and the right are transferred
(b) Opinions of the Commissioner of the National Tax Service;
According to the divorce agreement presented by the claimant, one of three real estate three real estate located in the name of the claimant other than the real estate in Ulsan City, OOdong in the name of the claimant other than the real estate will be transferred to the other claimant after the cancellation of the collateral mortgage, but there was no transfer of ownership as of July 21, 1996, which is the date of preparation of the divorce agreement, from July 21, 1996 to March 1, 1999. The disposition agency confirmed that OO as the former wife had no transfer of ownership as of March 21, 199, by wire (50-4853). Thus, it is difficult to accept the claim claim claim because it argues that the applicant delegated all of the matters when preparing the divorce agreement, which is not the transfer of ownership by the agreement on division of property, and that OO was not involved in the claim.
The purpose of property division system under Article 839-2 of the Civil Act is to liquidate and distribute the actual common property achieved through the cooperation of both parties during the marriage. The claimant does not present objective evidence to prove the fact that the real property at issue was acquired through the cooperation of both parties of the married couple, so the claimant's claim for property division is not reliable. The claimant transferred the right of claim for property division due to the gift to the non-party OOO as the solatium for divorce. This is considered to have been paid in kind to the non-party OO as the consolation money for divorce. This is considered to have been paid in kind as real property at issue, and the payment of divorce consolation money in kind constitutes a taxable object of capital gains tax (the same means. It is the same, 95Nu4599, November
3. Hearing and determination
A. Key issue
It is reasonable to judge whether the transfer of ownership of real estate is the exercise of the right to claim division of property, not the transfer of ownership of real estate in accord with divorce.
B. Relevant statutes
For the purpose of Article 88 (Definition of Transfer) (1) of the Income Tax Act, the term “transfer” in subparagraph 3 of Article 4 and this Chapter means that the assets are actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., regardless of their registration or enrollment.
In such cases, where a donee takes over any obligation of a donor of an onerous donation (excluding cases falling under the main sentence of Article 29-4(2) of the Inheritance Tax Act), the part equivalent to the amount of such obligation in the donation amount shall be considered as the actual transfer of the asset at a cost; and
Article 29-2 of the former Inheritance Tax Act (amended by Act No. 5193, Dec. 30, 1996); 1. A person who falls under any of the following subparagraphs shall be liable to pay gift tax pursuant to this Act (excluding a donation becoming effective due to the death of a donor; and hereinafter the same shall apply) of another person’s donation (including a donation becoming effective due to the death of a donor; and a person who acquires property exceeding the amount under Article 11(1) 1 (a) by claiming a division of property from the other party pursuant to Article 839-2 or 843 of the Civil Act; hereinafter the same shall apply); and
Article 839-2 of the Civil Act provides, “If no agreement is reached or no agreement is possible with respect to the division of property under paragraph (1), the Family Court shall, upon the request of the parties, determine the amount and method of division in consideration of the amount of the property achieved by mutual cooperation of both parties, and other circumstances.”
C. Facts and determination
(1) Examining the records related to this case’s taxation, the claimant(OO on October 8, 1948) and the non-party claimant(OO (OO on January 12, 1956) were married on January 22, 1975 and confirmed by a certified copy of the family register and the Seoul Family Court’s confirmation (OOO No. 96, No. 3748, Jul. 24, 1996), and the claimant agreed to donate the real estate at issue to non-partyOOO on July 24, 1996 as consolation money for divorce, and transferred the ownership of the real estate at issue on August 21, 1996 on the grounds of donation by means of divorce agreement (OOO General Certification Law Firm No. 1083, Jul. 24, 1996), duplicate of the application for registration and taxation data prior to taxation.
(2) According to the certificate of fact confirmed by the agency (199.8.21), the claimant has been engaged in real estate rental business as of 1981 through 1994, 198 and current real estate rental business as of 1991 and 1994, and 1987 and 1994, and according to the electronic data on the income of the National Tax Service, other than the claimed OO was engaged in the "OOO" as of December 11, 1995 and November 21, 1996, and the "OO" as of precious metal from 1995 to 197,654,000 won.
(3) We examine the claim that the claimant transferred the ownership transfer of the real estate at issue to the disposition agency by deeming that the claimant paid the ownership transfer to the non-claimer OO as the divorceal materials, and that the claimant transferred the ownership transfer to the non-claimer property division title.
Examining the contents of a divorce agreement (Seoul Family Court, July 24, 1996) by agreement between the claimant and the OOOO on divorce, the key real estate, among the property jointly formed, is agreed to transfer the ownership of the real estate to the OOOO within one week after the divorce procedure becomes final and conclusive (the claim's share). The property division system provided for in Article 839-2 of the Civil Act, which aims to liquidate and distribute the real common property achieved through the cooperation between both spouses during marriage, is recognized as having contributed to the formation of property by operating the "OOO" and the "OOOO" on the precious metal. Accordingly, if the ownership of the key real estate is transferred to the OOO in accordance with the agreement between the divorce parties, the claim for division of property based on the "property division claim" is reliable.
(5) In full view of the above facts, the initial disposition imposing capital gains tax on the instant real estate by deeming that the transfer of ownership in the instant real estate was an accord and satisfaction in lieu of the payment of divorce data is erroneous.
Therefore, this case's petition for a trial is with merit, so it is decided as ordered by Article 81 and Article 65 (1) 3 of the Framework Act on National Taxes.