Suwon District Court 201Guz.13577 (O. 11, 2012)

Seoul High Court Decision 2011Nu22, 2012

It is excessive that the apartment was actually acquired by paying most of the purchase price for the apartment, but it was transferred without being unregistered.

Since an apartment building has been completed due to the completion of registration of ownership preservation in the name of the construction implementer after approval for use, the right to sell the apartment can also become unregistered transferred assets, and it is legitimate to impose excessive restriction on the transfer of ownership to reduce various tax burdens even if the ownership transfer can be completed at any time before the transfer by paying the balance.

2012Nu1642 Revocation of disposition of imposing capital gains tax

Park AA

Head of the tax office

Suwon District Court Decision 201Guhap13577 Decided May 11, 2012

October 12, 2012

November 16, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant's disposition of imposition of capital gains tax of KRW 000 on January 15, 201 against the plaintiff on January 15, 201 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows: (a) on January 5, 2011, the second part of the third part of the judgment of the court of first instance was dismissed on January 15, 201; and (b) on the plaintiff's assertion, the reasoning of the judgment of the court of first instance is as stated in the reasoning of the judgment of the court of first instance, except adding the judgment similar to the following (2). Therefore, Article 8 (2) of the Administrative Litigation Act and the main part of Article 420 of the

2. Additional determination

A. The plaintiff asserts that the right to sell the apartment in this case is not the subject of registration, and that the transfer registration system is operated in the institutional way by the relevant laws, so there is no room for application of the unregistered tax rate on the transfer because the right to sell the apartment in this case is not the subject of registration, and that the unregistered transfer registration under Article 104 (3) of the former Income Tax Act is not the subject of registration. The unregistered transfer registration asset under Article 94 (1) 1 and 2 of the former Income Tax Act refers to the transfer of the asset without the registration on the acquisition of the asset, and Article 94 (1) 2 (a) of the former Income Tax Act includes the right to acquire the building and its appurtenant land at the time of completion of the building. The plaintiff's assertion that the use of the apartment in this case was approved by the Mayor of Seoul Special Metropolitan City on January 22, 2007 and the registration on the transfer registration of the apartment in the name of K University, which is the operator of the relevant construction project, and that the transfer registration of the apartment in this case was completed.

B. Also, the Plaintiff’s act of acquiring real estate without any specific scope is an act that causes damage to the principle of no taxation without any transfer, and that the Plaintiff is liable for the purchase and sale of real estate under the legal guarantee of no taxation without any transfer income tax. Therefore, it is reasonable to view that the Plaintiff was not liable for the acquisition of real estate under the legal principle regarding transfer income tax without any specific provision regarding transfer income tax under the former Enforcement Decree, and that the transfer of real estate constitutes an unlawful disposal contrary to the principle of no taxation without any transfer of real estate under the former Enforcement Decree (see, e.g., Supreme Court Decision 92Nu8934, Apr. 27, 1993), and that it would be reasonable to view that the Plaintiff was not liable for the acquisition and transfer of the assets without any specific provision regarding transfer income tax under the former Enforcement Decree, and that the transfer of the assets would not be subject to any specific provision regarding transfer under the former Enforcement Decree, including transfer of the assets, if any, to the effect that it would be difficult for the Plaintiff to acquire the assets without any legal basis.

3. Conclusion

If so, the judgment of the first instance is justifiable, and the plaintiff's appeal is dismissed as it is without merit.