Cho High Court Decision 201Do2687 ( October 24, 2011)

The disposition taken by applying the heavy and excessive tax rate by deeming the unregistered transferred asset, which is not the transfer of the right of sale, is legitimate.

In light of the fact that approval for the use of apartment buildings was granted and the registration for the preservation of ownership was completed in the name of the selling company, there is no registration for the transfer of ownership, most of the sale price was paid, and there is no unavoidable reason to deem that there was no registration for the transfer income tax being excessive, etc.

Article 88 of the Income Tax Act

Article 98 of the Income Tax Act

2012Gudan1276 Revocation of Disposition of Imposing capital gains tax

AAA

The Head of Seoul District Tax Office

May 2, 2012

June 13, 2012

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of capital gains tax of KRW 000 against the Plaintiff on June 16, 201 shall be revoked.

1. Details of disposition;

A. On June 2, 2004, the Plaintiff concluded a sales contract with BB Development Co., Ltd. on the apartment of Yongsan-gu Seoul OO 000 OO 000 Dong 0000, and on January 25, 2008, transferred the right to sell the apartment of this case to KimCC.

B. On January 29, 2008, the Plaintiff reported the transfer income tax for the year 2008 by applying the general tax rate (36%) by deeming the transfer of the right to acquire the instant apartment.

C. On June 16, 201, the Defendant: (a) determined that, at the time of the transfer of the instant apartment sales right, the Plaintiff paid KRW 000,000, most of the apartment sales price of the instant apartment sales contract, was actually liquidated; (b) determined that the transfer of the instant apartment sales right is deemed an unregistered transfer asset, and applied the tax rate on unregistered transfer assets (70%) to apply the transfer income tax rate for unregistered transfer assets; and (c) notified the Plaintiff of KRW 00,000,000, which

D. On July 20, 201, the Plaintiff filed an appeal with the National Tax Tribunal, which was dismissed on October 24, 201.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence No. 1, the purport of whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

Article 98 of the Income Tax Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter the same) and Article 162 (1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618 of Feb. 22, 2008; hereinafter the same) provide that the time of its transfer or acquisition shall, in principle, be the date of liquidation of the price of the relevant assets. Since the plaintiff did not acquire the apartment of this case since he did not fully pay the balance under the sales contract of this case at the time of transfer of the right to sell the apartment of this case, the transfer of the right to sell the apartment of this case was illegal. Further, the defendant's disposition of this case was unlawful because the purpose of the sales contract of this case was to pursue economic profit through resale, and did not own the apartment of this case, but did not sell the apartment of this case, and did not sell the apartment of this case without any intention to reduce the outstanding share of the purchaser and did not sell the apartment of this case.

(b) Fact of recognition;

(1) On June 2, 2004, the Plaintiff entered into a sales contract with the selling company for the apartment of this case. Of the sales price of KRW 000, the down payment of KRW 000,000, the intermediate payment, and KRW 000,000, respectively, over six times on the date of the contract, and on the date of the designation of occupancy.

(2) The Plaintiff paid the down payment and the intermediate payment, and paid 000 won out of the remainder on June 19, 2007, and paid 000 won by the end of August 2007, which was the date of designation of occupancy.

(3) According to the instant sales contract, the sales company shall register the preservation of ownership within 60 days from the completion date of the building, and the buyer shall complete the sale price and other payment and make the registration of ownership transfer at the buyer’s expense within 60 days from the completion date of registration of ownership preservation.

(4) The selling company obtained approval on January 22, 2007 for the apartment of this case, and completed the registration of ownership preservation on March 20, 2007. The Plaintiff concluded a contract with KimCC on October 23, 2007 for the transfer of the instant right to purchase and completed the registration of ownership transfer in its name on January 25, 2008, while KimCC received the transfer proceeds around January 25, 2008, and KimCC paid 00 won to the selling company and completed the registration of ownership transfer in its name on January 25, 2008.

(5) At the time of the transfer of the instant sales right, the Plaintiff had two bonds of one house and two officetels.

[Reasons for Recognition] The above evidence, evidence Nos. 2 and 3, the purport of the whole pleading

C. Determination

Article 88 (1) of the Income Tax Act provides that "transfer" means that an asset is actually transferred for price due to sale, exchange, investment in kind to a corporation, etc., regardless of the registration or enrollment of such asset, and Article 98 of the same Act provides that the time of sale and transfer of such asset shall be determined by Presidential Decree, and accordingly, Article 162 (1) of the Enforcement Decree of the Income Tax Act provides that the time of sale and transfer shall be the date of liquidation of the price of the relevant asset (excluding the amount of capital gains tax and income tax if the transferee agrees to pay the value of the transfer and acquisition thereof) except for the case falling under each of the following subparagraphs. In light of the purport of the above provision, since the transfer and sale contract of this case was lawful, the transfer and sale of the relevant apartment shall not be deemed to have been registered in the name of 0-day seller of the relevant apartment, regardless of the registration or enrollment of the relevant asset, and thus, it may be deemed that there was an inevitable circumstance that the price of the relevant apartment is almost paid by social norms since most of the price for sale and sale in the relevant apartment.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.