Ulsan District Court 2010Guhap478 (2011.05)

Cho High Court Decision 2009Da3522 ( December 30, 2009)

The acquisition date such as transfer of ownership is legitimate because the payment date is unclear.

Since the date of settlement of the price is unclear, it is legitimate to regard the acquisition date of the land in this case as the land for non-commercial use after the land readjustment project is authorized (the date of receipt of ownership transfer registration).

2011Nu679 Revocation of disposition to impose capital gains tax

Is 2,000

O Head of tax office

Ulsan District Court Decision 2010Guhap478 Decided January 5, 2011

August 12, 2011

September 23, 2011

1. The plaintiffs' appeal is dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The decision of the first instance court shall be revoked. The disposition that the defendant imposed capital gains tax for the year 2007 on the plaintiffs on April 2, 2009 shall be revoked.

1. Details of the disposition;

A. On June 3, 1999, the Plaintiffs: (a) were owned by thisA; (b) Plaintiff E was divided into 75,100 square meters for the instant land and 1,653 square meters for the instant land on March 22, 1994; and (c) Plaintiff E was completed the registration of ownership transfer on the instant land on May 1, 1999, for each of the instant land, 165,30 square meters for the instant land and 00-0 square meters for the instant land and 1,603 square meters for the instant land on March 22, 1994; and (d) Plaintiff B, 5,132, and 165,300 square meters for the instant land for the Plaintiff’s 163,068 square meters for each of the instant land for sale and purchase on May 1, 199.

B. On Nov. 30, 2007, the Plaintiffs issued a preliminary return and payment of capital gains tax on the instant land to the Defendant on May 1, 1999 prepared by thisA, accompanied by the sales contract, the certificate of transaction, and the letter of loan agreement dated Apr. 15, 1994. At the time, the acquisition date of the instant land was on Apr. 15, 1998, which is the date of redemption stipulated in the said letter of loan agreement; the acquisition value was KRW 610,000,000 (the amount reflects individual equity ratios); the transfer date was on Sept. 28, 2007; and the transfer amount was decided to be KRW 872,00,000, which is the amount reported to the competent authority on the grounds of a written contract (titled multiple contract) intentionally reduced and written.

C. As a result of an investigation by deeming that the plaintiffs reduced the transfer value of the land of this case and there is a suspicion of reporting non-business land on the date of acquisition differently from the date of acquisition on the register, the actual transfer value is KRW 990,000,000, and the acquisition value is KRW 77,000,000, which is the purchase price under the approval agreement, and the date of acquisition is unclear as the date of payment is unclear, it is deemed that the time of acquisition is the date of receipt of ownership transfer registration recorded in the register pursuant to Article 162 (1) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 199, June 3, 199, the date of acquisition is the date of approval for the project implementation of the land of this case, which is after August 14, 1998, which is the date of approval for the project implementation of the long-term possession special deduction and 60% of transfer income tax rate, 20007, 4541,45.

D. On June 15, 2009, the plaintiffs filed an objection with the defendant on June 15, 2009 and filed an appeal with the Tax Tribunal on September 25, 2009. On December 30, 2009, the Tax Tribunal decided that the plaintiff's acquisition price of the land of this case shall be the acquisition price converted pursuant to Article 176-2 (2) of the Enforcement Decree of the Income Tax Act in consideration of the area before and after replotting, and the tax base and tax amount shall be corrected. In accordance with the purport of the above decision, the defendant reduced the above disposition by 278,989,310 won in the case of the plaintiff E, and 208,51,540 won in the case of the plaintiff EB, and 126,693,410 won in the case of Canada (hereinafter referred to as "each disposition of this case").

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, Gap evidence 8, Gap evidence 10, Eul evidence 1 through 8 (including each number), the purport of the whole pleadings

2. The plaintiffs' assertion

On March 27, 1991, the Plaintiffs and EF purchased KRW 500,00,000 from thisA on condition that the transfer of ownership was registered after one year. On the same day, the Plaintiff and EF paid KRW 15,000,000 on April 11 of the same year, the intermediate payment of KRW 60,000,000,000 on April 29 of the same year, and KRW 75,000,000,000,000,000,000,000,000 won, and KRW 35,000,000,000,000,000,000,000,000,000, out of the land before subdivision, and the Plaintiff and EF paid KRW 30,000,000 respectively.

On July 25, 1991, in order to secure thisA’s right to claim for the registration of ownership transfer, the Plaintiffs and EF had registered the establishment of a neighboring mortgage in the name of KRW 100 million with respect to the land prior to the subdivision under the name of the mortgagee of the right to collateral security (Plaintiff) and subsequently, with respect to the land in question and the land in question, the registration of the establishment of a neighboring mortgage was completed on April 16, 1994 with respect to the land in question and the area of 00-0 square meters in XX Dong-dong 00-0,603 square meters.

On June 3, 1999, the Plaintiffs completed the registration of transfer of ownership of the instant land under the names of the Plaintiffs, and sold the instant land in KRW 990,000,000 to GamD on September 28, 2007.

Therefore, the date on which the plaintiffs actually acquired the land of this case is deemed to be April 29, 191 in which the plaintiffs paid the balance to thisA, and since the land of this case was prohibited or restricted by the laws and regulations due to the land readjustment project implemented thereafter, the land of this case should be subject to taxation by applying the long-term possession special deduction and basic tax rate as it constitutes the land for business, and each disposition of this case which applied the heavy taxation rate is unlawful.

3. Determination

The land category of this case is the answer, which is the fact that the plaintiffs do not reside or cultivate in the location of the land during the period of possession, and where the use is prohibited or restricted pursuant to the laws and regulations after acquiring the land, it may not be deemed the non-business land. The fact that the head of XX Metropolitan City permits the implementation of the land readjustment project for the land of this case on August 14, 1998 is not a dispute between the parties.

Therefore, in calculating the capital gains tax on the land of this case, the tax rate applied depending on whether the acquisition date was prior to the authorization date of the project implementation. Thus, we examine the plaintiffs' assertion on the acquisition date of the land of this case, that is, "the acquisition date of the land of this case shall be deemed as of April 29, 191, in which the balance of the land of this case was settled."

In accordance with the plaintiffs' assertion, Gap evidence Nos. 4-1 (GG's written confirmation), Gap evidence Nos. 4-2 (AA's written response), Gap evidence Nos. 5-1 and 2 (each receipt), Gap evidence No. 6 (joint investment amount), Gap evidence No. 7-1 (AA's written statement), Gap evidence Nos. 11-1, 12 and 13-1 within one of the evidence No. 12, Gap evidence No. 15-1 (GG's written confirmation of the plaintiffs), Gap evidence No. 16-1 (GG's written confirmation), Gap evidence Nos. 19 (GG's written response), and evidence No. 5-1 and 6-1 (a) of this case's written evidence No. 81 (O. 14) cannot be found otherwise in light of the following circumstances. Thus, the evidence of the court's testimony of this case's evidence No. 15-1 (GG's written evidence No. 14) and 13) of this case'the evidence of this case'.

First, the fact that the registration of ownership transfer is not made even after the full payment of the purchase price was made within eight years from that was made is equivalent to trade practice, and in such a case, it is difficult to readily understand that no one among the plaintiffs, sellers, and intermediaries is holding a sales contract, which is an important material to prove the plaintiffs' rights.

Second, while the plaintiffs purchased the land of this case, the mortgagee of the right to receive the intermediate payment and the balance receipt or the mortgagee of the right to claim the registration under the name ofGG instead of the plaintiffs, and the maximum debt amount of the right to collateral security is an exceptional that the plaintiffs cannot complete the purchase price claimed

Third, on March 22, 1994, the land before subdivision was divided into the instant land and the XX Dong 000-0,603 square meters. The plaintiffs asserted that they purchased the instant land and its size almost 500 square meters that coincide with that of the instant land before three years thereafter, and the indication of the subject matter of sale should be correct, but the subject matter of sale is specified in the evidence No. 5-1 and No. 2 (each receipt), and the evidence No. 6 (joint investment amount) states that the subject matter of sale is included in the land before subdivision, and that the above evidence alone does not indicate that the subject matter of sale is specified in the evidence No. 5-1 and No. 5-2 (joint investment amount).

Fourth, Kim Y testified that “△△△△△△△△△△ Real Estate Referral was entrusted to sell and arrange the sale of the instant land from 1988 to 1992, and the intermediate payment and the balance receipt (which appears to be Kim Y’s 1, 2, and each of the above receipts) were prepared, and Kim Y testified that it was difficult for the Plaintiffs due to delayed transfer of ownership registration of the instant land on March 201. However, in light of the fact that the Plaintiffs testified that “△△△△△△△△△△△△△△” was written in the column, the introduction of the sales contract (Records No. 128) of May 1, 1999, where the Plaintiffs were to have prepared a false document to reduce capital gains tax, it is difficult to easily believe the content of testimony based on the content and the remainder of testimony that △△△△△△△△△△△ by 192.

Fifth, in light of the empirical rule, it is difficult to believe that, after the completion of the sales contract, NG prepared and submitted a written confirmation (Evidence A 4-1) to the effect that, “CG was unable to pay time, while on duty, and thus, it was acting for the actual investors with the intent of the actual investors.” In light of the sales contract or the address of the Plaintiffs, it is difficult to believe that the actual investors are not present at any time when the sales contract was concluded or the payment was made in return for the transfer income tax of the Plaintiffs even after the completion of the sales contract. The reason why EA, the seller, is actively accompanied in preparing and attaching a false document in filing the return for the transfer income tax of the Plaintiffs.

Therefore, the acquisition date of the land of this case shall be deemed to be June 3, 199 (the date of receipt of ownership transfer registration recorded in the register) after the land readjustment project was authorized. Thus, each of the dispositions of this case that deemed the land of this case as non-business land is legitimate, and the assertion of the prior plaintiffs is without merit on different premise.

3. Conclusion

Therefore, the plaintiffs' claim shall be dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and therefore, the plaintiffs' appeal is dismissed.