Cho Jae-2016- Daejeon-2614 ( October 10, 2016)

It does not constitute fraud or other improper act if the transferred matter is not registered in the register of the register (the acquisition is recorded).

The Plaintiff’s failure to register the transfer of the instant real estate in the certified copy of the register does not constitute fraud or other improper act (acquisition).

Article 26-2 of the former Framework Act on National Taxes (Period for Exclusion from Imposition of National Taxes)

2016Gu 10114 Revocation of Disposition of Imposing capital gains tax

】 】

○ Head of tax office

May 23, 2017

August 29, 2017

1. The Defendant’s disposition of imposing capital gains tax on the Plaintiff on May 24, 2016 is revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Facts of recognition;

A. On March 10, 2004, the Plaintiff acquired the instant real estate from Aa to ○○○○○○○○ on April 16, 2004, and sold it to ○○○○○○○○○ (hereinafter “instant sales contract”).

B. The main contents of the instant sales contract are as follows.

The sale price and the payment method shall be determined as follows:

- The purchase price shall be 00 billion won.

- The contract bond shall be payable at the ○○○○○ level simultaneously with the contract.

Any balance shall be paid up to May 20, 2004 with ○○○○○○.

○ The seller shall provide the buyer or any person designated by him with all the documents concerning the delivery of the sales goods and the registration of transfer of ownership simultaneously with the payment of the purchase price from the buyer in full.

○ Special Agreement: The buyer shall make a registration of the purchase and sale price reservation at the same time as the balance remains.

C. On April 16, 2004, the Plaintiff received down payment ○○○○○○, respectively, on May 24, 2004, from bbb, and agreed to succeed to the buyer of the Plaintiff’s credit union loans.

D. On May 27, 2004, the Plaintiff completed the registration of the right to claim the transfer of all shares on the ground of BB’s spouse’s promise to trade in CC in the future.

E. On March 10, 2004, the registration of the establishment of a neighboring mortgage with the plaintiff as the debtor, credit union as the mortgagee was completed. On September 14, 2005, cC was completed on September 14, 2005, the registration of the establishment of a neighboring mortgage with the debtor, the community credit cooperative as the mortgagee was completed. On September 14, 2005, the registration of the establishment of a neighboring mortgage of the above cooperative was completed on September 14, 2005.

F. BB deposited each of the Plaintiff, ○○○○ on September 21, 2004, ○○○○○○ on February 7, 2005, and ○○○○ on February 22, 2005.

G. In the voluntary auction procedure commenced upon the application of community credit cooperatives as to the instant real estate, community credit cooperatives acquired the ownership by winning a successful bid on October 29, 2014, and completed the registration of ownership transfer on November 11, 2014.

H. The Plaintiff did not report the transfer income tax on the instant land.

I. On September 14, 2005, the Defendant considered the time of the transfer of the instant land as the time of the acquisition thereof, and applied the ten-year exclusion period of imposition to the Plaintiff on May 24, 2016, determined and notified ○○○○○ (hereinafter “instant disposition”).

(j) The Plaintiff, who was dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal on July 13, 2016, but was dismissed on October 10, 2016.

[Ground of recognition] Facts without dispute, Gap evidence 2, 6 evidence, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Even in cases where the date of transfer of the instant real estate on May 20, 2004, when the Plaintiff received the full payment of the purchase price, or when the date of liquidation is unclear, the provisional registration is completed on May 27, 2004, and in cases where the taxpayer fails to file a tax base return by the statutory due date of return, the exclusion period of imposition of capital gains tax shall be seven years. Thus, the Defendant issued the instant disposition on May 24, 2016, which was clearly past seven years from June 1, 2005, the transfer income tax period, and the said disposition is null and void as it was issued after the limitation period of imposition of national tax expires.

B. Determination

1) Time of transfer of the instant real estate

According to the main sentence of Article 88(1) of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009; hereinafter the same), the term "transfer", which is subject to capital gains tax, means that an asset is actually transferred for price due to sale, etc., regardless of its registration or enrollment. In addition, according to Article 98 of the former Income Tax Act and Article 162(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720 of Feb. 29, 2008), the time of transfer of the asset, in principle, is the date the price of the asset is settled.

According to the above facts of recognition, the plaintiff's methods of paying remaining purchase price of the real estate of this case

The buyer agreed to succeed to the credit union loans, and accordingly, the buyer paid the balance by obtaining a new loan from the community credit cooperatives and repaying the loans to the above credit union shall be deemed as the time of liquidation of the purchase price. Therefore, it is reasonable to deem that the Plaintiff transferred the instant real estate to the buyer on September 14, 2005. Accordingly, the Plaintiff’s assertion regarding the time of transfer of the instant real estate is groundless.

2) Whether the exclusion period has expired

A) According to the main sentence of Article 26-2(1)1, 2, and 3 of the former Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007; hereinafter the same), and Article 12-3(1)1 of the former Enforcement Decree of the Framework Act on National Taxes (amended by Presidential Decree No. 19893 of Feb. 28, 2007), national taxes, the tax base and tax amount of which are reported, shall not be imposed after the lapse of 5 years from the following day of the deadline for filing a return or the deadline for filing a return on the tax base and tax amount of the relevant national tax (hereinafter referred to as “one association member’s relocation right”). However, if the taxpayer fails to file a return of tax base within one association member’s relocation right, seven years from the following day of one association member’s relocation right, and if the taxpayer evades national tax due to fraud or other unlawful act, the period for exclusion of imposition shall be extended until the expiration of 10 years following year.

The legislative intent of Article 26-2(1) of the former Framework Act on National Taxes is to promptly facilitate tax law relations.

For the purpose of determination, in principle, the exclusion period of the right to impose national taxes is five years, but it is difficult for the tax authority to find out that there is any unlawful act, such as making it difficult for it to find out the fact of taxation requirements on national taxes or forging false facts, so it is difficult to expect the exercise of the right to impose national taxes. Therefore, the exclusion period of imposition of national taxes is extended to 10 years, so it is difficult for the tax authority to expect the exercise of the right to impose national taxes. Therefore, the "Fraud and other unlawful act" in subparagraph 1 of the same paragraph refers to fraudulent means or other active act that makes it impossible or considerably difficult to impose and collect taxes impossible, and it does not constitute a mere failure to file

However, it is difficult to view that the Plaintiff’s transfer of the instant real estate to BB and completed provisional registration based on the pre-sale agreement until about nine years have passed since the Plaintiff transferred the instant real estate to BB, and that the buyer did not complete the registration of ownership transfer in the future, but the above circumstances and the evidence submitted by the Defendant alone constitute “Fraud or other unlawful acts that make it impossible or considerably difficult to impose and collect taxes,” and there is no other evidence to acknowledge it.

B) Therefore, the exclusion period under Article 26-2(1)1 of the former Framework Act on National Taxes cannot be deemed to apply to the Plaintiff, and the exclusion period under Article 26-2(1)2 of the same Act shall be deemed to apply to the Plaintiff. In this case, the initial date of the exclusion period on which capital gains tax may be imposed is the day following the filing deadline (from May 1 to 31 of the following year of the taxable period), i.e., June 1, 2006, and the Defendant issued the instant disposition on May 24, 2016, which was seven years after the lapse of the said period, and thus, the instant disposition was unlawful since it imposed the exclusion period.

Thus, this part of the plaintiff's assertion is reasonable. However, the plaintiff is seeking revocation in the sense that the plaintiff's claim for revocation is declared invalid. Thus, the plaintiff's claim is accepted and the disposition of this case is revoked.

3. Conclusion

If so, the plaintiff's claim is reasonable and acceptable.