National Tax Service Review and Transfer 2011-0150 ( October 30, 2011)

As long as capital gains are acquired from transfer as the subject of ownership of unregistered resale, capital gains tax liability should be established.

The disposition of capital gains tax is legitimate on the ground that the circumstances such as the owner of unregistered real estate who is liable to pay the relevant capital gains tax, the imposition of fines for negligence in violation of relevant Acts and subordinate statutes, or the transferor has already reported the tax base of capital gains, regardless of whether the transfer of ownership is registered.

Article 88 of the Income Tax Act

Article 94 of the Income Tax Act

2011Guhap1670 Revocation of Disposition of Imposing capital gains tax

Park AA

Head of Ansan Tax Office

April 13, 2012

June 8, 2012

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 000 for the year 2009 against the Plaintiff on June 1, 2010 is revoked.

1. Details of the disposition;

A. On August 25, 1987, KimB: (a) acquired and owned the instant real estate at KRW 000,000; (b) on January 9, 2006, KimB filed a preliminary return on the tax base of transfer income with the transfer value of KRW 000,000, and KRW 000,000,000,000,000; and (c) sold the instant real estate to KimCC on January 9, 2006.

B. However, the Defendant did not sell the instant real estate to KimCC, but confirmed that KimB sold the instant real estate to the Plaintiff without completing the registration of ownership transfer in its name, and sold the said real estate to KimCC at KRW 000 without completing the registration of ownership transfer in its name, and on June 1, 2010, the Defendant imposed and notified the Plaintiff of KRW 000 of the transfer income tax for the year 2006 by applying the transfer value of the instant real estate as KRW 100,000 and the acquisition value as KRW 00,000, and applying the heavy tax rate of 70% for unregistered resale (hereinafter “instant disposition”).

C. On May 26, 201, the Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on May 26, 201, but the said request was dismissed on June 30, 2011.

[Ground of Recognition] The facts without dispute, Gap evidence 1 through 4, Eul evidence 7, and Eul evidence l through 3 (including each number), and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) On December 26, 2005, the Plaintiff purchased the instant real estate from KimB, and paid 000 won in total as the acquisition cost of the said real estate to KimB on December 26, 2005, and to KimB on December 26, 2005, including 00 won in total, and 000 won in total, from January 9, 2006, in lieu of payment of the purchase price, and paid 00 won in total as the acquisition cost of the said real estate by subrogation of the resident tax of KimB on January 11, 2006 in lieu of payment of the purchase price of the money. Accordingly, the Plaintiff’s real acquisition value of the instant real estate was 00 won, and otherwise, it is unlawful for the Defendant to consider the acquisition value of the said real estate as 00 won in excess of the transfer income tax on the Plaintiff.

(2) In addition, the Plaintiff already received a fine for negligence due to the violation of the Real Estate Registration Special Measures Act due to the resale of the instant unregistered real estate, and even though KimB reported the transfer value of the instant real estate at KRW 00,00, the Defendant’s imposition of capital gains tax on the instant real estate on the Plaintiff constitutes double taxation.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) As to the Plaintiff’s first argument

Under the overall purport of evidence evidence Nos. 8 through 10, the plaintiff paid 00 won for the real estate of this case between KimB on December 26, 2005, and 000 won for the contract date, and 000 won for the contract amount until January 10, 2006, adding the following facts: "The seizure and transfer income tax on the above real estate is responsible for the plaintiff" to KimB under the above contract, and the plaintiff paid 00 won for the delinquent resident tax (including additional dues) on July 11, 2006 to KimB on July 11, 2006, and there is no other evidence to acknowledge that the plaintiff paid 100 won for the above real estate of this case, and 00 won for the acquisition of the above real estate of this case, and 00 won for the real estate of this case, and 00 won for the acquisition of the above real estate of this case, and 100 won for the real estate of this case, 300 won for each of this case's evidence.

(2) As to the second argument of the Plaintiff

According to Articles 8(1), 94(1), and 104(1) of the former Income Tax Act (amended by Act No. 7873 of March 3, 2006), "transfer" means that the assets are actually transferred for price due to sale, exchange, investment in kind in a corporation, etc. regardless of registration or enrollment, and where income is generated from the transfer of land or buildings, the person to whom the income accrued shall pay the capital gains tax calculated by applying a certain tax rate to the tax base of the relevant capital gains. The Plaintiff is liable to pay the relevant capital gains tax as the person to whom the real estate belongs regardless of ownership transfer registration of the instant real estate, and the Plaintiff is liable to pay the relevant capital gains tax as the person to whom the transfer income was transferred, regardless of whether the Plaintiff acquired the instant real estate in 00 won, and the circumstances such as the Plaintiff was imposed a fine for negligence due to the violation of relevant Acts and subordinate statutes in relation to the transfer of the instant real estate or that KimBBB had already reported the capital gains tax base.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed as it is without merit, and it is so ordered as per Disposition.

shall be ruled.