Review Transfer 2007-0236 (2008.06.09)

Whether a transfer of a real estate right can be seen as a transfer of a real estate right where a land is transferred under the ownership of a river site.

It is difficult to see that the right to occupy and use land is a right that can be transferred, so it is difficult to see that the right to acquire real estate is the right to acquire real estate. Since the real land is transferred by submercing it, it falls under the transfer of land, and the river occupation fees, etc.

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

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 102,827,326 against the Plaintiff on November 26, 2007 shall be revoked.

1. Basic facts

(a) Details of the disposition;

(1) On August 15, 1983, the Plaintiff: (a) around 1983, the Plaintiff: (b) was divided into 11 lots of land around the time when the Plaintiff transferred the land; (c) the Plaintiff acquired the right to occupy and use 04-O, 94-O, 105-O, 105-O, and 761-O, 761-O, 13, 13, 907, and 761-O, 367 square meters of land on the ground; and (d) the right to occupy and use 11 lots of land around the time when the Plaintiff transferred the land; (c) but (d) the Plaintiff acquired the right to occupy and use 150,000,000 won of each of the instant land and the instant building.

(2) On the other hand, on January 6, 2004, Gyeonggi-do approved the land of this case as a desolated site for sale, and after the Namyang-si market approved it as an asset subject to sale on August 17, 2004, the Namyang-si market entered into a sales contract with the Plaintiff on August 27, 2004 that the Plaintiff shall pay 1,68,843,000 won for the three parcels of the land of this case among the land of this case, and the Plaintiff entered into a sales contract with the Namyang-ri market on August 27, 2004 that the Plaintiff shall pay 1,68,843,000 won for the purchase. On August 30, 2004, the Plaintiff jointly entered into a sales contract with the seller to transfer 3.12,000,000 won for each of the land of this case and the building of this case.

(3) According to the above sales contract on August 30, 2004, the plaintiff paid in full the price of three lots of land of this case to the Namyang-ju City Mayor, and completed the registration of ownership transfer under his name on September 9, 2004, but completed the registration of ownership transfer to the purchaser of the land of this case on October 20, 2004. On November 15, 2004, the Mayor of Namyang-ju City completed the payment of the price of one parcel of land of this case, and completed the registration of ownership transfer under his name to the above salter on the same day.

(4) On December 20, 2004, the Plaintiff reported and voluntarily paid the tax base of transfer income pursuant to the actual transaction price to the Defendant with respect to the transfer of each land of this case, and reported the basic deduction of transfer income to the Defendant on September 9, 2004 and November 15, 2004; the date of transfer to October 6-15, 2004; and the date of transfer to October 6-15, 2004, less than one year; transfer income amount to less than one year; transfer income amount to less than one year; transfer income amount to 105,081,120 won (=transfer value to 105,081,120 (=transfer value to 2,201,360,50) - Acquisition value to 1,981,360,500 won - Other necessary expenses and other necessary expenses 114,918,818,120 won after deducting the basic deduction of transfer income tax from 50%,1614,500.

(5) However, until July 2, 2007, the director of Seoul Regional Tax Office investigated the actual transfer value of each land of this case as KRW 2,523,680,250 (including under-reported KRW 325,402,00) by the transfer of each land of this case from July 2 to 30, 2007, and investigated it as necessary expenses, and the Plaintiff’s transfer income tax was calculated as KRW 151,131,827 (transfer income amount 325,40,680,250 - Acquisition value 2,056,360,500 - Necessary expenses 2,000 won - 141,918,800,000 won by taking the basic deduction into account the acquisition value of the building of this case and the brokerage fee additionally reported in the request for pre-assessment review as necessary expenses, and the Defendant calculated the amount of transfer income tax of this case as 200,000,0000 won,000 won,000 won.

B. The particulars of the acquisition and transfer of each of the instant lands and buildings

(1) On August 10, 1983, the Plaintiff acquired the right to occupy and use each of the instant lands from the New ○○ Construction Co., Ltd., and thereafter extended the occupation and use period with the permission from the head of Nam-gu on August 24, 1983, with the permission to occupy and use each of the instant lands, and used both a farm site and a fraternity as a result of the occurrence of a civil petition due to malodor, and filed an application for the transfer of each of the instant lands at Namyang-gu, Namyang-si, upon receiving the recommendation for the closure of a subway company around June 30, 199.

(2) On October 23, 1999, the Plaintiff entered into a sales contract with respect to the land and the building of this case as well as the land other than 00 million won (hereinafter “the first sales contract”) and received KRW 50 million on the date of the contract deposit, the intermediate payment of KRW 100 million on November 20, 199. On January 6, 2000, the Plaintiff assessed the ○○○ apartment 702 apartment owned by Kim Il-il (hereinafter “the apartment of this case”) as an intermediate payment of KRW 300 million, and transferred the purchase price to ○○○○ apartment 702 (hereinafter “the apartment of this case”). In the column of the first sales contract’s special agreement, the Plaintiff transferred the ownership of the land of this case to 00 million among the land of this case and transferred the ownership of the land of this case to 094-O and 105-O-O-O-O-O-O-O-O, the first sale of the land of this case.

(3) On July 21, 2000, the Plaintiff agreed to borrow the instant apartment as collateral and return KRW 200 million to Kim ○, and accordingly, the Plaintiff borrowed KRW 200 million from financial institutions on August 1, 200 and returned KRW 200 million to Kim ○. Meanwhile, on August 10, 201, Kim Jong-il paid KRW 20 million out of the above loan 200 million to the Defendant on March 15, 2002, in relation to the first sale contract, Kim ○-il returned to the Plaintiff the balance of the instant apartment, KRW 180 million, KRW 50 million, KRW 200,000,000, KRW 2000,000,000,000,000 to KRW 280,000,000,000,000,000,000,000,000,00).

(4) On the other hand, on January 16, 2004, Gyeonggi-do decided to approve the property to be sold to the Plaintiff with a preferential purchaser of 3,0789 square meters of three lots of land in each of the instant land (Notice of expected sale approval for each of the instant land) among the land in this case, and removed ○○○○○-ri 761-○ 367 square meters of land owned by the Plaintiff, which is a prospective site for the ○○○○, ○○○○-si, ○○○, ○○○-si, ○○○○ 361-○ ○ 367 square meters of land. The condition was attached to the approval condition that the removal of each of the instant land in this

(5) As seen earlier, the Plaintiff entered into a sales contract with the Namyang-ju market on August 27, 2004 to acquire three parcels of land in this case from each of the land in this case, and completed the registration of ownership transfer on October 11, 2004. On November 11, 2004, the Plaintiff entered into a sales contract to obtain one parcel of land in this case from each of the land in this case, and completed the registration of ownership transfer on the 15th of the same month. The Plaintiff paid the price in full and completed the registration of ownership transfer on the same day. The Plaintiff entered into a sales contract to transfer each of the land and buildings in this case as the joint transferor on August 30, 2004 with the price of KRW 3,120,000,000 from the price of each of the land in this case, and the seller of the building in this case paid the land transaction permission certificate to the buyer at the time of issuing the land transaction permission certificate, and decided to dispose of the building.

(6) On the other hand, on August 30, 2004, the Plaintiff terminated the first sales contract between Kim Jong-il, and Kim Il-il paid KRW 380 million to the Plaintiff when receiving the remaining payment of each of the instant lands, and the rent of each of the instant lands shall be borne by Kim Il-il, and each of the instant lands was made up between both parties after the first sales contract becomes null and void. The transfer income tax accrued after the sale to a third party of each of the instant lands shall be borne by Kim○-il, and the registration cost incurred at the time of the registration of each of the instant lands in the Plaintiff’s name shall be borne by the purchase price (hereinafter the third agreement).

(7) The building of this case was entirely removed until August 30, 2004, pursuant to the third agreement between the plaintiff and Kim ○-il sales contract of this case and the third agreement. The plaintiff and Kim ○-il paid the total amount of KRW 86,477,000, including the overdue portion of river occupation and use fees and the rent for desolate river site from September 14, 2004 to September 14, 2004 with respect to each of the lands of this case, and thereafter, as seen earlier, the ownership transfer registration was completed in the name of the plaintiff on September 9, 2004 with respect to each of the lands of this case, and the ownership transfer registration was completed on October 20, 204, and the ownership transfer registration was completed in the name of the plaintiff on November 15, 2004 with respect to the land of this case, and the ownership transfer registration was completed in the name of the plaintiff on November 15, 2004.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 16 (including provisional number), Eul evidence 1 to 9, the purport of the whole pleadings

2. The plaintiff's assertion

The Plaintiff asserts that the instant disposition is unlawful for the following reasons.

① In light of the developments leading up to each of the instant lands transaction, the Plaintiff entered into a contract to sell each of the instant lands to Kimyang-si in 1999 after acquiring the right to preferentially fire and buildings in 1983, but transferred each of the instant lands to Kim Il-il in 2004, and thus, the transfer related to each of the instant lands was only in the form before the ownership of the land, but only in the form before the ownership of the land, the transfer related to each of the instant lands was made by applying the short-term transfer rate of 50% of the transfer income tax calculated by applying the short-term transfer rate of less than 1 year, on the ground that the Plaintiff’s right to acquire real estate was newly established under Article 39-2 of the Gyeonggi-do Ordinance on Public Property Management for 21 years (4 years and 7 months from the time when the Plaintiff acquired the right to receive unclaimed land by a negotiated contract) and transferred it to the Plaintiff. However, the disposition of this case was unlawful.

② Since the Plaintiff transferred the instant building owned by the Plaintiff for 21 years, other than each of the instant land to Kim Il-il and Daume ○, the disposition of this case by calculating capital gains tax without making a special long-term holding deduction even though it was required for the portion of the building when calculating capital gains tax is unlawful.

③ The Plaintiff paid KRW 86,477,060 in the aggregate of river occupation charges and rents of desolate river sites until 2004 on the condition that the river occupation charges and the rents of desolate river sites are paid in full after closure measures were taken, even though the Plaintiff failed to operate a double farm on each of the instant lands after closure measures was taken on the recommendation of Namyang-si, 199. This constitutes necessary expenses for the acquisition of each of the instant lands, but the disposition of this case, which was imposed by calculating capital gains tax and imposing capital gains tax, is unlawful.

3. Relevant statutes;

Article 94 (Scope of Transfer Income Tax)

Article 96 (Transfer Price)

4. Determination

(a) Whether the right to acquire real estate is transferred;

(1) The term "right to acquire real estate" under Article 94 (1) 2 (a) of the Income Tax Act means the right to acquire real estate, the main purpose of which is to acquire real estate directly or at least for the actual purpose of which is to acquire real estate directly or through a certain procedure in the acquisition of real estate itself, if the main purpose of which is to acquire such right satisfies additional requirements or goes through certain procedures, and the "transfer of the right to acquire real estate" as the subject of capital gains tax shall be not only the transfer of such right itself, but also the so-called right itself shall be transferable.

(2) However, the Plaintiff’s transfer of each of the instant lands on December 20, 204 to ○○○○○○○○○ (hereinafter “instant land”) is deemed as the transfer of each of the instant land owned by himself for less than one year and calculated capital gains tax by applying the tax base return and the tax rate accordingly. Moreover, the Plaintiff’s purchase from New○○ on March 15, 1983 is merely the right to occupy and use each of the instant land, and accordingly, the Plaintiff cannot be deemed as the right to acquire real estate separately from the right to occupation and use each of the instant land, and it is difficult to view that the Plaintiff’s transfer of each of the instant land cannot be deemed as the right to acquire the remainder of the transfer of each of the instant land under the premise that the Plaintiff’s transfer of each of the instant land can be deemed as the right to acquire the said real estate, even if the Plaintiff and ○○○○○ (hereinafter “○○○”) transferred the ownership of each of the instant land under the premise that it would have been necessary for the Plaintiff to acquire the ownership transfer of each of each of the instant land.

B. Whether the instant building should be subject to special long-term holding deduction for transfer

In light of the fact that the plaintiff filed a report on the tax base of transfer income on December 20, 204 and did not include the building of this case in the object of transfer, as well as the removal of the building of this case under the terms and conditions of the sales contract under which the plaintiff would not receive the land of this case from the Namyang-si as seen above, it is practically impossible for the plaintiff to include the building of this case in the object of transfer along with each of the land of this case. In addition, the building of this case was already removed, demolished, and did not exist until the date of the transfer contract or the actual liquidation of each of the land of this case, and the share of 1/2 of the building of this case appears to have already been registered for transfer on April 8, 202, it is difficult to view that the building of this case was included in the object of transfer at the time of transfer of each of the land of this case, and therefore there is no ground for the plaintiff's assertion that each of the buildings of this case was included in the object of transfer at the time of transfer.

(c) Whether river occupancy fees, etc. fall under necessary expenses;

As seen earlier, the Plaintiff paid KRW 86,477,00 for occupation and use fees and rent for the river site after closing down the history of each of the instant lands from Namyang-si. However, such occupation and use fees and rent are limited to the expenses to be borne by the occupation and use right holder or use right holder, regardless of whether the Plaintiff actually occupied and used or used each of the instant lands during that period, and such expenses do not constitute the acquisition value, capital expenses, or transfer expenses of each of the instant lands. Thus, the Plaintiff’s assertion that the aforementioned expenses should be deducted from the transfer value of each of the instant lands as expenses necessary for acquiring each of the instant lands.

Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and it is so decided as per Disposition.