Cho High Court Decision 2008Do1250 ( December 18, 2008)

Evaluation of wrongful acts following a low price transfer between persons with a special relationship;

The standard time to determine whether a transaction constitutes an unfair act is the date of conclusion of the transaction at the time of the transaction, and the fact of low price transfer is confirmed as of the date of conclusion of the transaction.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 38,941,620 to the Plaintiff on January 4, 2008 shall be revoked.

1. Details of the disposition;

가. 원고는 1996. 2. 13. 서울 중랑구 ☆☆동 654 ★★아파트 706동 501호(이하 '이 사건 아파트')를 취득하여 보유하다가 2006. 11. 7. 여동생인 양○○에게 양도(부동산등기부상 소유권이전등기의 원인은 2006. 10. 17.자 매매이다)하였다. 원고는 위 양도 당시 1세대 2주택자에 해당하여 피고에게 실지거래가액에 의하여 양도가액을 230,000,000원, 취득가액을 154,746,000원으로 하여 양도소득세과표준 신고를 한 후 그 에 따른 양도소득세 6,296,050원을 납부하였다.

나. 피고는 2008. 1. 4. 원고와 양○○ 사이의 이 사건 아파트의 양도를 특수관계자 사이의 저가양도로서 부당행위에 해당한다고 보아 2006. 9. 22. 매매계약이 체결되고 2006. 11. 10. 양도되었고 이 사건 아파트와 면적이 같은 ★★아파트 706동 403호의 매매금액인 379,000,000원을 이 사건 아파트의 양도가액으로 적용하여 그에 따라 산출된 양도소득세 38,941,620원을 경정하여 고지하였다(이하 '이 사건 처분').

[Ground of recognition] Facts without dispute, Gap evidence, Eul evidence Nos. 1, Eul evidence Nos. 1, 2 and 3, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's principal

On January 16, 2003, the Plaintiff received and transferred the instant apartment by dividing the sales price of KRW 230,000,000, which is the market price at the time, into three Eups. Therefore, the instant apartment is transferred at the market price at the time of the formation of the sales contract, and it does not constitute an unfair act, since it is not a transfer at a low price, and thus, the instant apartment is not illegal. Therefore, the Defendant’s disposition of this case is unlawful.

B. Determination

(1) Article 101(1) of the Income Tax Act provides that "if an act or calculation by a resident with a transfer income is deemed to unreasonably reduce the tax burden on the relevant income due to a transaction with the resident and the related party, the income amount may be calculated in the current year, regardless of the resident's act or calculation." The provision on the wrongful calculation based on the foregoing legal basis is an objective fact and legally effective and lawful method, and accounting is accurate, if the act or calculation is a transaction between the related parties and the type of transactions unreasonably reducing the tax burden, then the legislative purpose is to realize fair taxation by embodying the substance over form principle under the tax law. Therefore, when a transaction between the related parties is deemed to be a normal transaction, and thus, it can be deemed that the tax burden has been unjustly reduced because the transaction between the related parties cannot be deemed to be a reasonable transaction in light of social norms or customs. On the other hand, at the time of determining whether the transaction constitutes an unfair act, the time when the transaction was concluded, namely, the time when the transaction was concluded (see, e.g., Supreme Court Decision 19Du17197.

(2) First, the date of concluding the instant apartment purchase and sale contract is deemed to be when the date of entering into the instant apartment. The fact that the reason for the registration of transfer of ownership was entered into on October 17, 2006 in the real estate registration book of the instant real estate should be deemed to be October 17, 2006, barring any special circumstance. Barring any special circumstance, the date of concluding the instant apartment purchase and sale contract shall be deemed to be October 17, 2006. The Plaintiff asserts that January 16, 2003 was the date of concluding the sale and purchase contract. The Plaintiff asserts that each entry in the Health Department, A2, 5, 6, 9, and 14 (including provisional numbers) is not reliable in light of the following circumstances, or the said evidence alone is insufficient to recognize the Plaintiff’s assertion. ① The Plaintiff consistently asserted that the Plaintiff concluded the instant apartment contract with both ○○ and ○○ on January 16, 2003, and submitted the sales contract as the date of pleading.

In light of the circumstances leading up to the submission of the above sales contract, etc., it is difficult to view the above sales contract as being entered into on January 16, 2003. (2) According to the aforementioned evidence, it is difficult to acknowledge the fact that the Plaintiff received KRW 150,00,000 from ○○○ during the period from January 16, 2003 to November 7, 2006, but it is recognized that the Plaintiff received additional KRW 80,000 (the details that the Plaintiff was paid as the purchase price are inconsistent). From January 16, 2003 to November 7, 2006, it is difficult to readily conclude that the Plaintiff was the purchase price of apartment from ○○○ up to 150,000,000 from ○○○ from November 16, 2003 to 10,000 and divided the ownership transfer registration into 16,000 or more of the instant apartment from 16,2016.

(2) 결국 이 사건 아파트의 매매계약체결일은 2006. 10. 17.이 된다. 상속세 및 증여세법령의 규정에 의할 때 2006. 9. 22. 매매계약이 체결되고 2006. 11. 10. 양도되었으며 이 사건 아파트와 면적이 같은 ★★아파트 706동 403호의 매매금액인 379,000,000원은 2006. 10. 17. 무렵 이 사건 아파트의 시가에 해당한다. 그렇다면, 이 사건 아파트의 양도는 특수관계자 사이의 저가양도에 해당하므로 부당행위가 된다. 따라서, 위 시가를 이 사건 아파트의 양도가액으로 보아 양도소득세를 경정하여 부과한 피고의 이 사건 처분은 적법하다.

3. Conclusion

The plaintiff's claim is dismissed.