Jeonju District Court-2013-Gu Partnership-2133 (Law No. 27, 2014)

Transfer 2013-0049

If the date of settlement of price is unclear, the date of receipt of registration shall be deemed the date of acquisition.

If the date of liquidation is unclear in case of transfer to a special measure, the time of acquisition shall be considered as the date of receipt of registration, and a disposition imposed on the date of acquisition of the cause of registration is unreasonable.

Enforcement Decree of the Income Tax Act Article 164 (Time of Transfer or Acquisition)

2014Nu835 Revocation of Disposition of Imposing capital gains tax

AA

Head of the District Tax Office

Jeonju District Court Decision 2013Guhap2133 Decided August 27, 2014

March 30, 2015

June 8, 2015

(as stated in the judgment of the first instance)

1. The disposition of imposition of capital gains tax of KRW 000,00, which the Defendant rendered to the Plaintiff on February 12, 2013, shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff acquired part of the co-ownership shares in sequence through a trade between inheritance and punishment (hereinafter referred to as "the co-ownership shares in this case") with respect to the total of 2 parcels (hereinafter referred to as "each parcel of land in this case"), 00 Do 00-0 Do 00, 000 Do 00, and 00-0 Do 200 Do 200, as follows. The registration as to the third co-ownership shares in this case was completed by the former owner's death ( April 25, 1971), after the death of 100 Do 200 (Law No. 4502, Nov. 30, 192; hereinafter referred to as the "Special Measures Act") of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate.

B. On January 28, 2011, the Plaintiff completed the registration of ownership transfer on the ground of each of the co-ownership shares acquired to Park 00 on January 28, 201.

C. When the Plaintiff reported the transfer income tax on the transfer of each of the above co-ownership shares to the Defendant, the acquisition price of the shares Nos. 1 and 2 of this case shall be calculated on the premise that the acquisition price of the transferred property under Article 8 of the Addenda of the Income Tax Act (Act No. 4803, Dec. 22, 1994) is the acquisition price of the transferred property (amended by Act No. 5031, Dec. 29, 1995; it shall be deemed that the real property acquired before Dec. 31, 1984 was acquired on Jan. 1, 1985; hereinafter referred to as "the presumption provision of this case"). The acquisition price of the shares No. 3 of this case shall be calculated on the basis that the acquisition price of the transferred property is the transfer date of Apr. 13, 195; the total acquisition price of the transferred property shall be calculated on the premise that the transfer date is the transfer date of KRW 95,496,9000,000.

D. On January 4, 2013, the Defendant re-calculated the transfer difference as KRW 000 based on the acquisition price calculated as of January 1, 1985 on the real estate acquired before December 31, 1984, not on the date of registration of transfer, rather than on January 1, 1970, which is the date of registration of the third co-ownership. Accordingly, the Defendant corrected and notified KRW 000,000 as indicated in the order corresponding to the difference between the transfer income tax calculated accordingly and the transfer income tax reported and paid by the Plaintiff (hereinafter “instant disposition”).

E. The Plaintiff filed a request for review with the Commissioner of the National Tax Service for objection to the instant disposition, but the said request for review was dismissed on June 24, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 and 4 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

The Plaintiff purchased shares No. 3 of this case from a new 00, and paid the purchase price in installments each year, and decided to register the ownership transfer if the money paid as such is a certain amount. However, in a situation where the purchase price was not paid in full, new 00 died voluntarily, and thereafter, the Plaintiff examined the heir of new 00 with economic help, such as lending money, etc., and instead completed the registration of ownership transfer on the third co-ownership shares, the disposition of this case, premised on the premise that the Plaintiff paid all the purchase price on the date of the registration date as to the third co-ownership share, is unlawful

2) The defendant's assertion

The Plaintiff’s application for confirmation and letter of guarantee submitted by the Plaintiff under the Act on Special Measures to the head of Si/Gun for the registration under the name of the Plaintiff, stating that the Plaintiff actually owns the land of this case on January 10, 1970. The former owner’s death on April 25, 1971, the former owner’s transfer registration was completed on the ground of the Plaintiff’s trade although his/her heir such as his/her spouse was dead, the latter owner’s transfer registration was presumed to have been completed on January 10, 1970; the time of acquisition of the third co-ownership shares based on the presumption of ownership transfer registration was presumed to have been the time of acquisition of the third co-ownership shares of this case on or before December 31, 1985; the Act on Special Measures applies to the real estate acquired the third co-ownership shares of this case on or before the date of death of new 00. Thus, the presumption of this case’s acquisition of the third co-ownership shares is lawful.

B. Relevant statutes

The entries in the attached statutes are as follows.

C. Determination

1) According to Article 98 of the Income Tax Act and Article 162(1)1 of the Enforcement Decree of the Income Tax Act, in calculating gains on transfer of assets, the time of acquisition shall be the date of liquidation of the price of the assets in question, and if the date of liquidation is unclear, the date of registration shall be the date of receipt recorded in the register.

(2) As the defendant's assertion, ① acquired the third co-ownership shares of this case before December 31, 1984, and calculated the acquisition value of the third co-ownership shares of this case in accordance with the presumption provisions of this case, comprehensively taking account of the overall purport of arguments as to ① 00 died on April 30, 197; ② 00 families were disposed of 30 new co-ownership shares excluding the third co-ownership shares of this case as the heir at the time of 1980 and moved to Seoul. 300 shares were jointly and severally stated in the above 190 shares issued by the plaintiff on the 3rd co-ownership shares of this case as to the 3rd co-ownership shares of this case, ③ 100 shares were owned by the plaintiff on the 19th anniversary of the total number of new co-ownership shares issued by the guarantor under the Act on Special Measures for the Acquisition of Ownership of this case as to the 3rd co-ownership shares of this case.

As to the third co-ownership share of this case, the reason for registration entered in the real estate registration register is to be traded on January 10, 1970, and the sale and purchase of the third co-ownership share of this case was presumed to have been made on January 10, 1970 (see, e.g., Supreme Court Decisions 79Da971, Jul. 24, 1979; 95Da42980, Feb. 27, 1996). As seen above, in calculating gains from transfer of assets, the time and transfer should be deemed to be not "the date of acquisition or transfer" but "the date of liquidation of the price" rather than "the date of acquisition or transfer" as "the date of receiving the registration if the liquidation date is not clear," and thus, it should be deemed to be the date of liquidation of the third co-ownership share of this case as the date of acquisition, not the date of sale, but the date of acquisition by the defendant 200 days of acquisition or sale without any specific reasons for 10 days of acquisition.

(C) In the instant case, the Plaintiff and the seller, who is the purchaser and the seller, may be determined somewhat strict in consideration of each other’s circumstances as to the timing of payment of the purchase price, unlike in the case of a trade between pro-friendly and non-friendly parties. Therefore, it is difficult to readily conclude that the purchase price was paid by the time when the sale contract was concluded.

AFFFF had purchased shares from other equity right holders on November 10, 1967, and completed a share transfer registration on December 30 of the same year within two months. The Plaintiff purchased shares from other equity right holders on June 8, 1978, and completed a share transfer registration on June 10 of the same month, which is two days after the date of the purchase. In light of the above circumstances, if the Plaintiff paid the share transfer registration before the date of the purchase or the new 00 was paid on or before April 25, 1971, the Plaintiff appears to have completed the share transfer registration at that time.

The defendant asserted as the basis for settlement of the price that the transfer registration of ownership was completed on the third co-ownership share of this case by inheritance to the new 00 family members, and that the new 00 family members were directors in Seoul and did not sell the third co-ownership share of this case to the plaintiff in 1980, while the new 00 family members sold the third co-ownership of this case to the new 3 co-ownership in Seoul in 1980. However, even if the purchase and sale contract was concluded with the plaintiff and the payment was not paid in full, it cannot be ruled out that the new 00 family members did not complete the inheritance registration on the third co-ownership share of this case after the new 1980 or did not sell the third co-ownership share of this case to the third party.

Article 3 (Scope and Scope of Application) of the Act on Special Measures for the Settlement Industry (amended by the Act No. 358, Dec. 31, 1985) provides that the above Act shall apply to real estate, etc. which was actually transferred due to a juristic act, such as sale, donation, exchange, etc. on or before December 31, 1985. However, to obtain a written confirmation to apply for the registration of ownership transfer under the above Act, there is no need to submit relevant documents, such as financial transaction data proving that the price has been liquidated before December 31, 1985 (Articles 7 and 10 of the above Act). In light of the above, it is difficult to exclude the possibility that the Plaintiff applied for the registration of ownership transfer after obtaining a written confirmation and written confirmation from the guarantor even if the Plaintiff did not liquidate all the price before December 31, 1985, and it is difficult to say that the Plaintiff actually owned the real estate as of January 10, 197 through 14, 1994.

3) Furthermore, as long as it is not clear whether the due tax amount is settled or not, on April 13, 1995, the date when the Plaintiff acquired the third co-ownership shares of this case pursuant to Article 162(1)1 of the Enforcement Decree of the Income Tax Act, which is the date when the ownership transfer registration for the third co-ownership shares was received. Based on the above, the calculation of capital gains tax is the same as the capital gains tax initially reported and paid by the Plaintiff. Thus, the disposition of this case should be revoked in entirety

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by the assent of all participating Justices.

(However, in the second instance decision, as follows):

1. Quotation of judgment of the first instance;

The court's reasoning concerning this case is as stated in the reasoning of the judgment of the court of first instance, except for the dismissal or addition of the following Paragraph 2 of the judgment of the court of first instance. Thus, this court's reasoning is cited in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Parts to be dried or added;

A. On January 1, 1970, Part 3 of the judgment of the court of first instance stated "as the premise that it is January 1, 1970" in Part 4 of the judgment of the court of first instance.

B. Of the judgment of the first instance court, the following is added to the sub-paragraphs 3 through 6 below.

Examining the process of transformation of ‘the provision on the constructive acquisition and transfer timing' concerning ‘the case where the date of settlement of the price is unclear' under the Income Tax Act, the above constructive provision was newly established at the time of the amendment of the Income Tax Act on December 21, 1982 and the amendment of the Enforcement Decree of the Income Tax Act on December 31, 1982, and before that, regardless of whether the date of settlement of the price under Article 27 of the former Income Tax Act (amended by Act No. 3576 of December 21, 1982) is clear, the date of receipt or receipt of part of the price other than the down payment (the date of cash or valuables similar to the intermediate payment other than the down payment, and the date of cash or valuables similar thereto) is deemed to be the date of acquisition and transfer.

Article 27 of the former Income Tax Act (amended by Act No. 3576 of Dec. 21, 1982) and Article 53 (1) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 10977 of Dec. 31, 1982) consider the time of acquisition or transfer as "the date of liquidation of the price", but it is unclear that the date of transfer registration of ownership recorded in the register (However, if the period from the date of registration to the date of receipt of the registration exceeds one month, the date of receipt of the registration) is deemed as the time of acquisition or transfer, but the remaining payment agreement stated in the sales contract was amended as of December 31, 1988 (if the period from the date of the remaining payment agreement entered in the sales contract to the date of receipt of the registration exceeds one month, the remaining payment agreement was amended as of 10 days before the date of receipt of the sales contract (the date of receipt of the remaining payment agreement) or changed as of 13 days before the date of receipt of the sales contract.

Therefore, the plaintiff's claim shall be accepted with due reasons. Since the judgment of the court of first instance is just in conclusion, the defendant's appeal is dismissed as it is without merit, and " February 12, 2013" in the main sentence of the judgment of the court of first instance shall be deemed to be a clerical error of " January 4, 2013," and it shall be corrected as per Disposition.