Seoul Administrative Court 201Gudan10723 ( August 17, 2011)

early 2011west0350 ( October 31, 2011)

Where real estate transferred due to division of property is transferred, the acquisition value shall be determined on the basis of the first acquisition date in calculating transfer margin.

In calculating transfer gains from the calculation of transfer income tax on apartment transfer, the acquisition value shall be determined at the time when the original spouse acquired the apartment of this case, not at the time the plaintiff acquired the ownership of the apartment of this case due to division of property.

2012Nu29273 Revocation of Disposition of Imposing capital gains tax

IsaA

Head of Yongsan Tax Office

Seoul Administrative Court Decision 2011Gudan10723 decided August 17, 2011

November 9, 2012

December 21, 2012

1. The plaintiff's appeal is dismissed.

2. The plaintiff shall bear the total costs of the lawsuit after filing the appeal.

The judgment of the first instance shall be revoked. The Defendant’s disposition of imposition of capital gains tax of KRW 000 to the Plaintiff on October 11, 2010 shall be revoked.

1. Details of the disposition;

A. On January 25, 2008, the Plaintiff completed the registration of transfer of ownership in the name of the Plaintiff on June 1, 2009, and on June 23, 2009, transferred the apartment of this case to ParkG on June 23, 2009, with respect to 000 Odong O-dong 000 O-dong O-dong 000 O-dong 000 O-dong 00,000 (hereinafter “the apartment of this case”).

B. The Plaintiff reported and paid KRW 000 capital gains tax calculated by regarding the acquisition date of the apartment of this case as June 1, 2009, and the acquisition price as KRW 000, when filing a preliminary return on the tax base of transfer income on the transfer of apartment of this case.

C. Since the Plaintiff acquired the instant apartment as a division of property, the Defendant: (a) on September 1, 2010, on the ground that the acquisition time of the instant apartment ought to be deemed to be July 23, 2004, the acquisition date of the instant apartment, which is the former spouse; and (b) KRW 000,000, the conversion price of the acquisition value, shall be 00,000; (c) the total determined amount of capital gains tax for the year 2009, computed by deducting KRW 00,000,000, which is the tax payable, was notified as the tax amount; and (d) the instant disposition was imposed upon the Plaintiff, and the relevant tax notice was served on the Plaintiff on October 11, 2010.

[Ground of Recognition] The facts without dispute, Gap evidence 3 through 5 (including each number), Eul evidence 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On August 22, 2007, the Plaintiff filed a divorce lawsuit against DoD with the judgment ordering the Plaintiff to divide the property, etc. against DoD, and on January 25, 2008, at the appellate court of the instant case, the divorce and DoD should pay the Plaintiff KRW 00 as a property division. In the instant conciliation, the Plaintiff had DoD perform part of the monetary payment obligation on the ground of property division by the method of payment in kind. Accordingly, the Plaintiff received the registration of ownership transfer for the instant apartment on June 1, 2009 as the payment for part of the above monetary payment obligation from DoD. Accordingly, the cause for the Plaintiff acquired the instant apartment is not a property division, but a payment in substitution for the performance of the monetary obligation that DoD should pay to the Plaintiff as a property division, and the instant disposition that reported otherwise is unlawful.

(b) Fact of recognition;

1) On August 22, 2007, the Seoul Family Court rendered a judgment ordering the Plaintiff to pay the consolation money of KRW 000 and damages for delay against each of the above amounts, in the case of divorce and division of property, etc. brought by the Plaintiff against DoD, including the Seoul Family Court Decision 000O00 and the division of property, etc.

2) The appellate court of the above case (Seoul High Court 000O000) reached an agreement between the Plaintiff and DoD on January 25, 2008, and its main contents are as follows.

(Major Contents Omitted)

C. Determination

1) The property division system provided for in Article 839-2 of the Civil Act is substantially applicable to the partition of co-owned property in light of its legal nature, and the object and scope of partition. Therefore, the legal principles on the partition of co-owned property should apply mutatis mutandis. The division of co-owned property under law is the exchange or sale of shares among co-owners. However, in substance, it is limited to the specific part acquired by concentrating the right, which is limited according to its share ratio as to the co-owned property, and its ownership form is changed as it continues only to exist only in the specific part. Thus, it cannot be deemed as the transfer of property subject to capital gains tax under the Income Tax

The legal doctrine likewise applies to cases where one side of the married couple’s property was transferred to the other party by means of division of property according to divorce. In addition, in cases where the real estate transferred by division of property thereafter is transferred, the acquisition value should be determined as of the time of its initial acquisition, and the time of transfer of property based on division of property does not constitute the standard (see, e.g., Supreme Court Decision 96Nu1401, Feb. 13, 1998; 2002Du6422, Nov. 4, 2003).

2) The following circumstances are revealed in light of the aforementioned evidence and factual basis, and the purport of the entire pleadings.

(2) The following circumstances are omitted:

"A) On January 25, 2008, at the appellate court of the case of divorce and division of property against DoD, the conciliation was concluded that DoD transferred the ownership of the apartment in this case to the Plaintiff as division of property (Article 3). Accordingly, on January 25, 2008, the registration of transfer of the Plaintiff’s ownership in the name of the Plaintiff as to the apartment in this case was made on the ground of property division." However, on August 22, 2007, the first instance court of the above divorce and division claim, which was the first instance court of the above divorce and division of property, decided on August 22, 2007, the Seoul Family Court found that DoD did not have any property subject to division of property, and this DoD recognized that DoD did not have any property subject to division of property as the property subject to division of property, and that DoD did not have any positive property equivalent to 10 million won including the total market value of 8 lots of real property, and that Do property was paid to the above property division of 20000%.

C) At the first instance of the above divorce and the claim for division of property, DoD argued that only the remaining real estate and shares should be excluded from the property subject to division of property on the ground that they are unique property of DoD (the court of the first instance in the above case, and the remaining real estate and shares of DoB, excluding the apartment of this case, among the property of DoB, are assessed as unique property which are formed based on DoD's inherited property or donated to DoD, but the plaintiff, the wife, has contributed to preventing the reduction of the above property while bringing up his/her child in full charge and raising his/her child, and this situation is considered to be included in the property division subject to division of property

D) According to the conciliation clause established in the Seoul High Court case 2007Reu1715, the appellate court on the judgment of the first instance court, and the conciliation clause (1) provides that the amount of property division that Dod has to be paid to the Plaintiff is set at KRW 000 on January 4, 2008, and only the conciliation clause (1) latter part, paragraph (3), and paragraph (4) provides that Dodu shall transfer the ownership of the apartment of this case to the Plaintiff as property division, and it is determined that Dodu shall transfer the ownership of the apartment of this case to the Plaintiff, and that the remaining amount of property division should be determined in cash, not by the actual value (the above appraised value less the collateral debt amount of the apartment of this case from 00 won) of the apartment of this case, and that the Plaintiff shall be deemed to have acquired the ownership of the apartment of this case as property division in exchange for the amount and method of property division established in accordance with Article 839-2 of the Civil Act, and that the remaining amount of property division of this case should be determined by the Plaintiff’s property division of this case as property division.

3) Ultimately, on the premise that the Plaintiff acquired the apartment in this case through division of property, it is reasonable to deem that the instant disposition was lawful when the acquisition value was calculated based on the time of acquisition of the apartment in this case under the name of DoD, and the Plaintiff’s above assertion made on the premise different from

3. Conclusion

If so, the plaintiff's claim can be dismissed due to the lack of reason, and the judgment of the court of first instance is just in conclusion. The plaintiff's appeal is dismissed for lack of reason.