Examination Transfer 2012-0026 (Law No. 16, 2012)

the transfer of assets by auction, even if the assets are transferred by auction

Whether the disposal of assets is done by the owner or not by a person, such as an auction or public sale, etc., and as such, it does not affect the determination of whether the assets are transferred by the owner or not. Thus, it cannot be deemed that the real estate was not transferred even if it

2012Gu 19734 Revocation of Disposition of Imposing capital gains tax

Chapter AA

Head of the tax office;

July 3, 2013

July 31, 2013

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of capital gains tax of KRW 000 to the Plaintiff in August 9, 2011 shall be revoked.

1. Details of the disposition;

A. The Plaintiff: (a) 6/34 out of the 000-12 site, 1166.1 square meters (hereinafter “instant land”); (b) 6/34

On September 13, 2010, when the shares (hereinafter referred to as "the shares in this case") are owned, the transfer income tax was not reported even though the shares were transferred to Gangwon on the ground of successful bid. On August 9, 2011, the defendant decided and notified 00 won of transfer income tax to the plaintiff (hereinafter referred to as "the disposition in this case").

B. The Plaintiff filed a petition for review against the Plaintiff’s objection, but dismissed on April 16, 2012

was made.

[Ground] Facts without dispute, Gap evidence to 3, and Eul evidence

2. The assertion and judgment

A. Summary of the plaintiff's assertion

The Plaintiff did not transfer the instant shares, and the instant disposition was unfair because the lower right was established on the basis of the maximum maximum amount of claim 000. The Defendant calculated the conversion acquisition value by deeming the acquisition date of the instant shares as January 1, 1985, but the Plaintiff acquired the instant shares due to a public sale on November 24, 2006, and accordingly, should accordingly correct the tax base and tax amount.

B. Determination

(1) Article 88(1) of the Income Tax Act provides for the Plaintiff’s first argument that “transfer” refers to the actual transfer of assets at a cost by means of sale, exchange, investment in kind in a corporation, etc. regardless of the registration or enrollment of the assets. Here, “transfer at a cost” includes not only the sale, exchange, investment in kind in a corporation, but also the payment for the transfer of ownership regardless of the form of payment in kind, payment by subrogation, expropriation in public use, etc. Accordingly, the transfer of assets includes both cash or goods in return for the transfer of ownership, or other assets corresponding to the transferred assets in exchange for the transfer of ownership, or the transfer of assets in exchange for the transfer of ownership, or the transfer of liabilities with legal obligation, such as an auction or public sale, and it does not affect the determination of whether the disposal of assets is made by the owner or not. Accordingly, if the ownership of real estate is transferred by auction, it is an auction price and the person to whom the transfer income belongs is the owner of the assets.

Ultimately, even if a transfer by auction was made, it cannot be deemed that the Plaintiff did not transfer the instant share, and even if the maximum debt amount was set on the land of this case, it cannot be deemed that there was any error in the disposition of this case, and the Plaintiff’s assertion above.

shall not be effective.

(2) 원고의 두 번째 주장에 대하여 본다. 갑 제1호층， 을 제2호증의1， 2의 각 기재 에 변론 전체의 취지를 더하여 보면，① 이 사건 토지는 1980. 12. 20. 상속을 원인으로 하여 최KK， 유HH， 유TT， 유JJ， 유FF， 유QQ， 유MM， 유NN 및 원고에게 이전되었고， 원고는 이 당시 4/34 지분을 취득하였던 사실[등-기 순위번호 Ie이하 번호 만 기재한다)J，② 이후 최KK의 지분 10/34(유NN으로부터 1983. 6. 9. 상속받은 지분 4/34를 합한 것이다)이 1990. 4. 1. 협의분할에 의한 상속으로 원고에게 이전된 사실[2， 3]， ③ 유JJ， 유FF， 유QQ의 지분 합계 6/34 및 유MM의 지분 4/34에 관하여 원고는 2002. 5. 30. 이를 이전받은 사실[17， 18]， ④ 2002. 8. 31. 공유물 분할을 원인으로 유HH(6/34)， 유QQ의 지분(4/34)이 2002. 9. 4. 원고에게 이전된 사실[25]， ⑤그런데 위 공유물 분할 이전인 1998. 12. 12.경부터 2002. 8. 8.경까지 오산시， 국， 서울 송파구， 과천시， OOO제이차유동화전문유한회사 등에 의하여 유QQ의 지분이 압류 및 가압류되어 있었던 사실[9~ 12， 19， 20]， ⑥ 이에 대하여 강제경매가 개시되었다가 공매로 변경되어 2006. 11. 24. 공매가 행해진 사실(한편 유HH 지분에 대해서는 강제경매개시결정이 있을 뿐이다)[33， 33-1]， ⑦ 위 공매절차에서 유TT의 지분에 대하여 조LL이 이를 경락받은 사실[36]， ⑧ 한편， 위 콩매에 따라 조LL이유TT의 지분을 취득하자 원고는 공매를 원인으로 유HH의 지분만을 전부이전 받은 것으로 2006. 12. 4. 소유권 변경등기가 이루어진 사실[25-1]， ⑨ 그 이후 등기상 착오발견을 이유로 2007. 10. 5. 원고가 유JJ의 6/34 지분을 취득한 것으로 소유권경정등기가 이루어진 사실[25-2]， ⑩ 그 이후 이 사건 지분에 대한 임의경매개시결정이 이루어져 2010. 9. 13. 강BB에게 경락되기에 이른 사실[45]을 인정할 수 있다.

In light of the above circumstances, since the Plaintiff’s share acquired from H was transferred on August 31, 2002 due to the division of co-owned properties among heirs on August 31, 2002, it is reasonable to view the Plaintiff as the fictitious acquisition date on January 1, 1985 pursuant to Article 162 of the Enforcement Decree of the Income Tax Act. Although the Plaintiff asserted to the effect that he participated in the public sale procedure and acquired the instant share, there is no evidence to acknowledge it, and even if it is difficult to view that the entries in the above registry were commenced on August 24, 2006, the Plaintiff acquired the instant share due to the public sale.

After all, the plaintiff's assertion that he acquired the shares of this case due to a public auction on November 24, 2006 is without merit, and it is not reasonable to examine further.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

section 3.