When land is invested in kind, it shall be deemed the time of transfer.

In concluding the real estate management trust agreement of this case, it can be deemed that the plaintiffs transferred the land of this case to the association and performed the obligation of investment in kind, and it is difficult to deem that the disposition of this case was unlawful within seven years from June 1, 2008, the expiration date of the period for filing the final return of the transfer income tax base

Article 98 of the Income Tax Act

Seoul Administrative Court-2016-Gu Partnership-58178 Revocation of Disposition of Imposing capital gains tax.

MaO et al. 73

OO Head of the tax office and 17

December 16, 2016

2017.02.03

1. All of the plaintiffs' claims are dismissed.

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

Each disposition of imposition of capital gains tax by the defendant of the Gu office shall be revoked as shown in the attached Form.

1. Details of the disposition;

In October of 000 to October of the same year, the OO market supplied a site for living measures ( approximately KRW 000 square meters per person) to 00 fishing village fraternity members, etc., and the Plaintiffs received succession to the rights and duties on the said land from October of 000 to October of 000, and completed the registration of ownership transfer.

The plaintiffs did not report the transfer income tax because they invested their own land in kind in each joint building association but did not report the transfer income tax. The defendants deemed that the plaintiffs invested the above land in kind in around 000 and determined and notified the transfer income tax to the plaintiffs (hereinafter "the disposition of this case").

[Ground of recognition] Facts without dispute, Gap evidence Nos. 5 and 6 (including virtual number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiffs' assertion

Since the Plaintiffs invested in kind the instant land in around 000 to 000, the instant taxation disposition was unlawful as it was made after the lapse of seven years of exclusion period of imposition. Furthermore, the Plaintiffs did not know that they should report and pay the transfer income tax in relation to the instant land investment in kind, and thus, the additional tax portion among the instant taxation disposition is unlawful.

B. Determination

1) Facts of recognition

From 2005 to 2006, Co., Ltd., Ltd., 000, 000 stock companies (hereinafter referred to as "execution agency") have secured the land owned by the props by entering into a prop joint business agreement (hereinafter referred to as "the primary business agreement") against each of the propssss of the instant land including the plaintiffs from 2005 to 2006. The enforcement agency entered into a real estate security trust agreement with AAA trust and BB trust for the same period, and entrusted the ownership of the instant land (hereinafter referred to as "the instant real estate security trust"). The instant real estate security trust was terminated, and the transfer of ownership was completed in the name of the plaintiffs due to the reversion of trust property from July 2007 to December 2.

The plaintiffs, enforcement agency (the corporation received the right of enforcement from the existing enforcement agency on or before June 2006) and the Corporation entered into a new prop joint business agreement on the land of this case (hereinafter referred to as the "second business agreement") for the same period and trust the ownership of the land of this case after entering into a real estate management trust agreement with the CCC trust (hereinafter referred to as "the real estate trust of this case").

In around 2007, the Defendant rendered the instant disposition by deeming that the Plaintiffs’ investment in kind was made with respect to the instant land as a result of the conclusion of the real estate management trust agreement.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2, 3, and 4, the purport of the whole pleadings

2) Determination

An investment in kind in a cooperative constitutes the transfer of assets at a cost, which is the taxable cause of capital gains tax, and the time of such transfer is when the cooperative performs the investment in kind (see, e.g., Supreme Court Decision 2000Du5852, Apr. 23, 2002). A partnership agreement under the Civil Act is a contract under which two or more persons mutually invest and agree to jointly operate a specific business, and it can be deemed a partnership agreement only for a joint agreement that operates a specific business, and the degree of common achievement of the purpose does not meet the requirements for establishment of the cooperative (see, e.g., Supreme Court Decision 2003Da60778, Apr. 9, 20

In full view of the following facts and circumstances, the evidence mentioned above, Gap evidence Nos. 4, 7, 10, and 11, which can be acknowledged by adding the whole purport of the pleadings, it can be deemed that the plaintiffs transferred the land of this case to the association and performed the duty of investment in kind at the time of entering into the real estate trust agreement of this case around 2007. It is difficult to view the disposition of this case, which was made within seven years from June 1, 2008, which was the expiration date of the period of imposition of imposition of imposition of the transfer income tax.

① The instant real estate security trust agreement between the Plaintiffs and trust companies is to preserve and manage trust real estate in order to ensure the purpose of the trust as a party to the contract is to guarantee the management of ownership of the trust real estate and the performance of obligations or responsibilities borne by the trusters (Plaintiffs). The original of the trust is determined as real estate in trust, etc.; the scope of the loan principal and interest of the beneficiaries increased or decreased due to credit transaction with respect to the right to benefit of the first beneficiaries is determined; however, there is no provision on the newly constructed building. On the other hand, the instant real estate management trust agreement between the Plaintiffs, enforcement agencies, trust companies, and City Corporation, as a party to the contract, prescribed the original of the trust as the sale price of the real estate and the trust property; first, the trust property and the trust property were determined as the sale price of the real estate; first, the trust property should be limited to the trust property (construction on land and the building to be newly constructed on the land) and the trust property should be determined within the scope of the amount of the funds obtained from the new construction and the trust property management agreement.

② From July 2007 to December 2007, the Plaintiffs had completed the instant real estate management trust registration pursuant to the second business agreement after cancelling the registration of the instant real estate security trust with respect to the instant land from July 1, 2007. The joint construction association to which the Plaintiffs belong, as an association related to land of 00, has completed the instant real estate management trust registration pursuant to the second business agreement. Since each of the two business days was the joint construction association with respect to land of 200, respectively, on December 15, 2005 (21-50 joint construction association), on March 26, 2007 (21-60 joint construction association), on December 15, 2005 (21-64 joint construction association) and on March 26, 2007 (21-64 joint construction association) the Plaintiffs had completed the new construction agreement with the new construction construction association on March 26, 2007, respectively, on the ground that the new construction agreement had been amended on April 27, 20007.

Meanwhile, in order to facilitate the exercise of taxation rights and the realization of tax claims, additional tax under the tax law is an administrative sanction imposed as prescribed by the Act in cases where a taxpayer violates various obligations, such as a return and tax payment, without justifiable grounds. Therefore, it is unreasonable for the taxpayer to be unaware of his/her obligations due to the conflict of opinion in tax law interpretation beyond a simple scope of land or misunderstanding. If there are circumstances where it is unreasonable for the taxpayer to be aware of his/her obligations, or there are circumstances where it is unreasonable to expect the party to perform his/her obligations to be unreasonable, or where there is any other reason that it is unreasonable to expect the party to perform his/her obligations, such sanctions may not be imposed (see, e.g., Supreme Court Decision 2016Du4711, Oct. 27, 2016). However, the following circumstances cited by the Plaintiffs, i.e., it was difficult to expect a return of transfer income tax because of the lack of income from transfer, and the circumstances that the Plaintiff believed that the transfer income tax liability was generated only after the transfer of apartment after the investment did not constitute a taxpayer’s.

3. Conclusion

Thus, the plaintiffs' claim of this case is dismissed for reasons.