Seoul Administrative Court-2018-Gu Partnership-56954 ( October 10, 2019)

In calculating transfer margin, the actual transaction price means the actual amount agreed for the payment itself or at the time of transaction.

The amount paid by the plaintiff to resolve the dispute and acquire ownership shall be considered as acquisition value, and the time of attribution shall be determined reasonably on the basis of maturity and confirmedness to the extent that there is a high possibility of realizing capital

Article 97 (Calculation of Necessary Expenses for Transfer Income)

2019Nu34038 Revocation of Disposition of Imposing capital gains tax

AA

GG Head of the tax office

2019.05.22

2019.07.10

1. The defendant's appeal is dismissed.

2. Costs of appeal are borne by the Defendant.

1. Purport of claim

The imposition of capital gains tax of KRW 00,000,000 (including additional tax) for the Plaintiff on July 3, 2017 shall be revoked.

2. Purport of appeal

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim corresponding to that part shall be dismissed.

1. Quotation, etc. of judgment in the first instance;

The reasoning of this court's judgment is as follows. This part of the judgment of the court of first instance is revised as follows 2, and it is identical to the reasoning of the judgment of the court of first instance (including the "6. conclusion" and the attached Form) except to supplement or add the judgment as follows 3. Thus, it is acceptable to accept it as it is in accordance with Article 8 (2) of the Administrative Litigation Act, Article 420

2. Revised parts

○ 10 10 10 o.b. “five o.b.”

○ 11 Up to 12 pages 5 up to 12 copies below the following modifications:

Article 97 (1) of the former Income Tax Act (amended by Act No. 12852, Dec. 23, 2014; hereinafter referred to as the "former Income Tax Act") provides that "necessary expenses to be deducted from the transfer value when calculating gains on transfer of residents, such as the acquisition value ( Subparagraph 1) of the assets under each subparagraph of Article 94 (1) of the former Income Tax Act, capital expenses as prescribed by Presidential Decree ( Subparagraph 2), and other expenses prescribed by Presidential Decree ( Subparagraph 3). Article 163 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 26067, Feb. 3, 2015; hereinafter referred to as the "former Enforcement Decree of the Income Tax Act") provides that "the actual transaction price" in the main sentence of Article 97 (1) 1 (a) of the Income Tax Act means the sum of the following amounts, and Article 97 (1) 1 of the former Income Tax Act provides for the acquisition price of assets purchased from 20.

○ 16 under the following up to the right by inserting 8 others:

8) In the stage of paying the down payment in the real estate sale and purchase contract, when the contract has been fulfilled in full due to the waiver of the contract or the payment of the intermediate payment, etc., the seller may not escape from the duty to transfer the ownership of the real estate to the buyer unless the contract is revoked or rescinded. Nevertheless, if the seller disposes of the real estate to a third party before transferring the ownership of the real estate to the buyer in accordance with the terms and conditions of the contract and completed registration following such disposal in the third party, the crime of breach of trust is established (see Supreme Court en banc Decision 2017Do4027, May 17, 2018). KSM paid KRW 0,000,000 out of KRW 259-80,000,000,000,000,000,000,000 won in total, in the process of purchasing the down payment and intermediate payment to the Plaintiff, taking into account the fact that it is difficult for the Plaintiff to pay the above KRW 000 billion to the seller.

○ 20 ....... by inserting on the right side of 20 ....

5) As seen earlier, if the seller disposes of the real estate to a third party before the seller transfers the ownership of the real estate to the buyer in accordance with the terms and conditions of the contract and completes the registration pursuant to the third party’s disposal, the crime of breach of trust is established if the seller disposes of the real estate before the seller transfers the ownership of the real estate to the third party, and the seller completes the registration following the third party’s disposal. As such, in the process of joint purchase by CSH, KJS, and KLN’s 259-8 and BL259-16 of the land before division, the sales contract cannot be cancelled in the form of JDB, KSJ’s mind. Nevertheless, considering the fact that if JDB and KSJ disposes of the said real estate to the Plaintiff and completed the registration of transfer of ownership, it is difficult to deem that the Plaintiff, who acquired the status of JDB, and KSJ, paid the purchaser’s representative KRW 00 billion, an amount equal to the amount paid by CSH, etc. to cancel the above sales contract.

○ 23 Up to “paid from CBK” received from 1st page 23 CBK.

3. Supplement and addition of judgments;

A. The Defendant asserts as follows. Among the KRW 00 billion paid by the Plaintiff to KSM and KRW 0 billion, the Plaintiff acquired the status of a single purchaser from the joint purchaser of the land before subdivision, apart from the acquisition of the instant land, and then additionally paid to KSM and SSH for the purpose of compensating for losses arising from the cancellation of the sales contract regarding part of the land before subdivision. Accordingly, this cannot be deemed as the “amount of the cost of lawsuit, reconciliation costs, etc. directly required to secure the ownership, etc.” under Article 163(1)2 and (3)2 of the former Enforcement Decree of the Income Tax Act, such proportional amount does not constitute the acquisition value to be deducted from the transfer value of the instant land.

However, as determined in the judgment of the first instance court cited by this court, the Plaintiff, in order to resolve the dispute with KSH on the land prior to subdivision 259-8, and to acquire ownership, added up the amount reflecting the compensation for damage and the increase in the price of the land, etc. paid by KSM as the down payment and the down payment, etc., among the lands prior to subdivision 259-8, and provided a collateral security right of KRW 00 million with respect to the said land. The Plaintiff provided a collateral security right of KRW 259-8, 259-16 with the maximum debt amount, among the lands prior to subdivision 259-8 and the land before subdivision 259-16, to resolve the dispute and acquire ownership, it is reasonable to view that the Plaintiff paid KRW 0 billion to KSH as the total debt amount of KRW 259-2,259-8, out of the land prior to subdivision 200 billion and the acquisition value of the said land. Accordingly, it is reasonable to view that the Defendant’s assertion that the above land ownership of KRW 000 billion is established.

B. The Defendant also asserts as follows. Even if the necessary expenses incurred by the Plaintiff during the process of becoming a single purchaser of the land prior to partition are recognized as KRW 0 billion, the time of calculating the above KRW 0 billion to the acquisition value of the land of this case shall be the time of calculating the acquisition value of the land of this case. The time of calculating the aforementioned KRW 259-2 and 259-8 of the land prior to subdivision, which was not March 23, 2009, the date of establishing a mortgage contract, rather than the date of a mortgage contract, which was the date of March 2, 2006.

The former part of Article 98 of the former Income Tax Act provides that "the time of acquisition and time of transfer of assets shall be the date of liquidation of the price of the assets except in cases prescribed by Presidential Decree, such as cases where the date of liquidation is unclear". Article 162 (1) of the former Enforcement Decree of the Income Tax Act provides that "cases prescribed by Presidential Decree, such as cases where the date of liquidation of the price is unclear" means cases falling under any of the following subparagraphs, and subparagraph 1 through 10 of the former Enforcement Decree of the Income Tax Act provides that "the date of liquidation of

The above provision is a provision that limits the acquisition time and transfer time of assets for tax calculation in order to uniformly grasp the acquisition time and transfer time of assets which are various standards within the system of income tax-related Acts and subordinate statutes and to interpret and apply without inconsistency with the relevant provisions (see, e.g., Supreme Court Decisions 2000Du6282, Apr. 12, 2002; 201Du8994, Mar. 29, 2012): Provided, That the transfer time prescribed in Article 98 of the former Income Tax Act and Article 162(1) of the former Enforcement Decree of the Income Tax Act shall not be determined as a general principle without exception to the time of attribution of capital gains, and in specific cases, even if it is impossible to realize capital gains by taking into account the management of capital gains, the degree of objectiveization of control and transfer income, and the timing of securing taxpayers’ money, it shall be reasonably determined based on whether it is considerably mature and reasonable to the extent that it can be realized (see, e.g., Supreme Court Decision 2005Do2529).

As seen earlier, the Plaintiff spent KRW 00,000 and KRW 0,000 to KSM 2 to resolve the dispute with respect to part of the pre-divisiond land and acquire ownership. This would be the acquisition value of the assets. However, on March 2, 2006, KJH issued documents necessary for the establishment of mortgage to SSH 259-2 and mountain 259-8 out of the pre-divisiond land to the purchaser’s representative, and on March 3, 2006, it is reasonable to deem that the Plaintiff transferred the ownership of the pre-divisiond land to the designated person or set up mortgage 200,000,000,000 won to the extent that it was difficult to view that the pre-divisiond land was non-determined by 30,000,000 won prior to the completion of the mortgage establishment registration between the Plaintiff and 200,000,000 won prior to the completion of the mortgage establishment registration.

4. Conclusion

Thus, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remainder shall be dismissed as without merit. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit.