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(영문) 거주요건 충족치 못하여 비사업용토지로 보아 실거래가액 과세한 처분의 당부(취소)
조세심판원 조세심판 | 2008-07-14 | 조심2007구3615 | 양도
[Case Number]

Early High Court Decision 2007Gu3615 (No. 14, 2008)

[Items]

Transfer

[Types of Decision]

Revocation

[Summary of Decision]

For the convenience of proving resident registration, it is unreasonable to consider resident registration as land for non-business use and impose tax on the actual transaction price by considering resident registration as land for which resident registration is reported only, and it is difficult to deem that the actual transaction price is illegal only on the basis of the fact that the contract date or bill received any balance as contract date or bill.

[Related Acts]

Article 96 of the Income Tax Act / Scope of Land for Non-business Use under the Enforcement Decree of the Income Tax Act

【Determination following Decision】

The early appellate court 2009bu1207/ the early appellate court 2010 Gu0518/ the early appellate court 2010 Gu0519/ the early appellate court 2012505

【Disposition】

The disposition to refuse to correct the transfer income tax of 6,411.94 square meters on nine parcels, such as 00 23 m2,000 OOOO No. 23,00,000 for the claimant, shall be revoked.

【Reasoning】

1. Summary of disposition;

A. On December 29, 2005, the claimant jointly with OOO on December 29, 2005, 16 lots, such as 1,268 square meters of forest land and 23 square meters, and 24-19 forest land at the same place on April 11, 2006, acquired them, and sold them to OOO on December 29, 2006, and paid transfer income tax of 2,908,006,006,000 won to the claimant’s share (50%) as the actual transaction value, after calculating the transfer value to 20,30,000 won.

B. On December 31, 2006, the claimant filed an application for rectification by filing a final return of capital gains tax on May 30, 2007 and filing an application for rectification on the basis that the transfer value should be calculated based on the standard market price as the claimant transferred on or before December 31, 2006 the entire 12,823.87 square meters of land (hereinafter referred to as “marketed land”) 6,41.94 square meters of land, including 6,41.94 square meters of forest land located in Busan 23,00,000. However, the disposition agency rejected it on July 27, 2007.

C. The claimant appealed and filed an appeal on September 7, 2007.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

At the time of the acquisition of the land at issue on December 29, 2005, the domicile of the resident registration was OO, the mother of which was OO, but was OO (hereinafter referred to as 'OO') located adjacent to the location of the land at issue on May 9, 2006, but in fact, it does not constitute non-business land since it was transferred from July 29, 2005 to reside continuously.

In accordance with Article 104-3 (1) 2 (b) of the Income Tax Act, forest land owned by a person who resides in a forest under the conditions as prescribed by the Presidential Decree shall be excluded from land for non-business use. In this case, the resident registration requirements prescribed by the Enforcement Decree of the same Act are merely cited as one of the fluent evidentiary materials to confirm that the owner actually resides in the forest, and it is not allowed to discriminate against or treat a specific taxpayer unfavorably without any reasonable reason. Thus, the disposition imposed on the person who actually resides in the forest is against the principle of tax equality

Since the fact that the land at issue was acquired on December 29, 2005 and transferred on December 29, 2006 after the lapse of one year from the date of acquisition is confirmed by a certified copy of the register, the disposition based on short-term holding by the disposition agency is not based on the disposal for the reason of short-term holding even though the standard market price should be applied to the real estate held over one year under the Income Tax Act, and the claimant sold the land at issue with the knowledge of the fact that there was a strict tax burden if it is damaged by the advice of a tax expert. Thus, the claim that the sale for the purpose of legitimate saving is a non-conforming speculation has no legal basis, so this disposition must be revoked.

(b) Opinions of disposition agencies;

In order to be determined as land for business, the key land is registered as a resident in the location of the key land or in the Si/Gun/Gu adjacent to it, and actually residing in the Si/Gun/Gu and meets the period standard under Article 168-6 of the Enforcement Decree of the Income Tax Act (80% or more of the neighboring area during the possession period). However, it is confirmed that the applicant’s resident registration was made as an OO, the mother’s domicile, from November 21, 1993 to May 9, 2006, and that the ownership period of the key land (9.5.9 to December 29, 2006) actually resided in the neighboring area (2006.9 to December 29, 2006) is 80% or less (234 days/36=63.3%) and thus, the disposition rejecting a request for correction by deeming the key land as non-business land.

In light of the fact that the claimant acquired 16 parcels including the key land on December 29, 2005 and 3,951,000 won on April 11, 2006, and entered into a contract for a transfer of 20,300,000 won as a site for the building of multi-family housing (the date of the sale contract on the register) and the short-term market profits have occurred, it is reasonable to deem that the claimant acquired 2,300,000 won for the purpose of speculation rather than the acquisition of the key land for the purpose of speculation. Further, the claimant acquired 2,00,000 won for the down payment and the intermediate payment of 16,80,000 won for the purpose of speculation, respectively, and the price of 1,50,000 won equivalent to 7.4% of the total purchase price was received on August 11, 206 and the date of payment of 200,000 won in advance pursuant to the provision of Article 26-12.

3. Hearing and determination

A. Key issue

(1) The propriety of the disposition imposing the transfer income tax on the actual transaction price by regarding the land for non-business use as the land for non-business use since the registration of resident has not been made in the location of the land

(2) The propriety of the disposition imposing the transfer income tax on the actual transaction price in the case of transfer by illegal means, such as a false transfer of real estate or resident registration within one year after the acquisition of the disputed land

B. Relevant statutes

(1) Notwithstanding the provisions of paragraph (1), in case where assets under Article 96 (Transfer Price) of the Income Tax Act are transferred not later than December 31, 2006, the transfer value of such assets shall be based on the standard market price at the time of the transfer of such assets except for the cases falling under any one of the following subparagraphs:

4. Where assets are real estate within one year after acquisition;

5. Where real estate is acquired or transferred by illegal means, such as preparation of a false contract or a false transfer of resident registration, which meets the standards as prescribed by the Presidential Decree;

8. Where it is a land for non-business use under the provisions of Article 104-3; and

(1) The term "land for non-business" in Articles 96 (2) 8 and 104 (1) 2-7 means the land falling under any of the following subparagraphs (hereafter referred to as the "non-business land" in this Article) for the period prescribed by the Presidential Decree from among the period of owning the relevant land:

2. Forest land: Provided, That any of the following shall be excluded:

(a) Forest genetic resources protection forests, reserved forests, seed-gathering forests, experimental forests designated under the Forestry Act, and other forests prescribed by Presidential Decree necessary for public interest or for the protection and fosterage of forests;

(b) Forest land owned by a person residing in the location of forest under the provisions of the Presidential Decree;

(c) Forest land prescribed by Presidential Decree as having considerable reasons for deeming that it is directly related to residence or business in consideration of the owner, location, utilization, holding period, area, etc. of the land;

(2) The case where the transfer value of assets is based on the actual transaction value under Article 96 (2) 5 of the Enforcement Decree of the Income Tax Act shall be the case where the real estate is acquired or transferred by unlawful means, such as preparation of a false contract or a false transfer of resident registration, etc., and which falls under any of the following subparagraphs:

5. Where the transfer margin based on the standard market price by transaction unit is one hundred million won or more.

The term "period prescribed by Presidential Decree" in the part other than the subparagraphs of Article 104-3 (1) of the Act means the period falling under any of the following subparagraphs:

3. Where the possession period of land is less than three years, the period falling under all of the following items:

(a) Period exceeding the period deducting two years from the holding period of land; and

(b) Period exceeding the period corresponding to 20/100 of land possession period. In such cases, the calculation of period shall be made by the number of days;

(2) The term "forest land owned by a person who resides in the forest" in Article 104-3 (1) 2 (b) of the Act means the forest land owned by a person who is registered as a resident in the same Si/Gun/Gu (referring to an autonomous Gu; hereafter the same shall apply in this Article) as the location of the forest or a Si/Gun/Gu adjacent thereto and actually resides in the area within the Si/Gun/Gu adjacent thereto.

C. Facts and determination

(1) On December 29, 2005, the claimant acquired the key land and sold it to OOO on December 29, 2006, and paid the preliminary return of transfer income tax by calculating the actual transaction value. The claimant, considering that the transfer value should be calculated as the standard market price as the claimant actually resides in the area adjacent to the key land should be calculated as the standard market price, although the claimant filed a request for the final return and correction of transfer income tax on May 30, 2007, the fact that the disposition

According to the resident registration card, the applicant's domicile is confirmed to have been transferred on May 9, 2006 to the key address, and according to the copy of the real estate register, the claimant acquires the key land on December 29, 2005 and registered the transfer of ownership on December 29, 2006 and confirmed that the ownership has been transferred on December 29, 2006, and the retention period is one year.

(2) We examine the issues ①.

(A) On December 29, 2005, the claimant acquired the key land on December 29, 2005 and transferred it on December 29, 2006. Since the claimant actually resided from the key address to the time of the transfer of the key land after July 29, 2005, the claimant asserts that the standard market price should be applied by deeming the land for business under the

(B) Article 96 (2) of the Income Tax Act provides that "in the case of land for non-business under the provisions of Article 104-3, it shall be based on the actual transaction price, and Article 104-3 (1) 2 (b) of the Income Tax Act provides that the forest owned by a person who resides in the forest under the conditions as prescribed by the Presidential Decree shall be excluded from the land for non-business under the conditions as prescribed by the Presidential Decree. Article 168-9 (2) of the Enforcement Decree of the same Act provides that "the forest owned by a person who resides in the forest shall be the forest" means the forest owned by a person who is registered as a resident in the same Si/Gun/Gu as the location of the forest or Si/Gun/Gu adjacent thereto, and Article 168-6 of the Enforcement Decree of the same Act provides that where the possession period of land is less than three years, the standard for the land for the period of non-business shall be exceeded two years

(C) The claimant asserted that only his mother’s domicile was located in an OO, which is the domicile of her mother, but actually resided in an OO that is linked to the location of the disputed land from June 20, 203, and that the claimant actually asserted that he had resided in an OO that is connected with the location of the disputed land, but the content of the entry

(D) On April 21, 2005, the claimant opened an OO, which is the main address, and it appears that the management expenses were paid every month after July 27, 2005.

(E) According to the occupant card that the claimant prepared directly at the time of moving into the key address, it appears that the claimant and the claimant's family are written, and the claimant has received the CRF card on June 17, 2005. The key address security guards confirmed the fact that the claimant has resided in the key address in the POO's factual confirmation, and the certificate of registration of the OOO use agreement is confirmed that the delivery of the invoice is written as the key address on July 7, 2005.

(F) Along with the fact that the applicant’s mother, who was his domicile, did not reside in the ParkO-O that had been resided in the OO-O in March 202.

(G) Comprehensively taking account of the above facts and the relevant Acts and subordinate statutes, the provision of resident registration as a requirement for residence under Article 168-9(2) of the Enforcement Decree of the Income Tax Act can be deemed as being one of the valuable evidence to verify that the applicant actually resides.OO or resident registration is for the convenience of proof, and the resident registration is not for the convenience of proof, and it cannot be deemed that the resident registration is based on the OO or the fact that the management fee for the address was paid every month after July 27, 2005, the applicant’s name and the beneficiary of the vehicle entry card was signed on the O or the vehicle entry card on the O or the beneficiary of the vehicle entry card, and the mobile phone delivery request for the address used by the claimant is a key address. Thus, the applicant shall be deemed as residing in the O or the main

Therefore, it is reasonable to regard the land as the land for business since the claimant resided in the 80% or more of the retention period on the register of the land at issue (one year or 1) after July 29, 2005.

(3) We examine the issues ②

(A) The claimant asserts that the disposition agency did not have any legal basis for claiming that the land is an speculative transaction, and that the sale and purchase of the land in question is legitimate for the purpose of legal saving.

(B) Article 96(2)4 and 5 of the Income Tax Act provides that "real estate within one year after its acquisition" or "cases of acquisition or transfer of real estate by unlawful means, such as preparation of a false contract, false transfer of resident registration, etc., which meet the criteria as determined by the Presidential Decree," shall be based on the actual transaction price. Article 162-2(2) of the Enforcement Decree of the same Act provides that "Where the transfer value of assets is based on the actual transaction price, such as preparation of a false contract, false transfer of resident registration, etc., the acquisition or transfer of real estate according to the standard market price by transaction unit"

(C) With respect to the assertion that the claimant did not own the land at issue for a period of one year or more, the disposition agency is confirmed to have refused a request for correction by the claimant because it is difficult to view the receipt of the balance at the time of transfer as an ordinary real estate transaction and general real estate transaction because it is difficult to view it as an ordinary real estate transaction and general real estate transaction because it is difficult to view it as an ordinary real estate transaction.

(D) According to the real estate sale contract for the key land, etc., the claimant entered into a contract for acquisition on December 12, 2005 to pay 300,000 won of the down payment on December 21, 2005 and the balance of 3,650,100,000 won on December 28, 2005, but it appears that the transfer of ownership registration and the last balance was paid on August 14, 2006 when the intermediate payment was made on December 29, 2005, and according to the real estate sale contract for the key land, etc., the claimant entered into a contract for sale on December 22, 2005 and received the intermediate payment on August 30, 206, as shown in the above table.

At the time of acquisition on December 29, 2005, the standard market price by transaction unit is 1,207,109,000 won, and at the time of transfer on December 29, 2006, the standard market price by transaction unit is 980,293,000 won and the transfer margin is 226,815,00 won.

(E) In order to apply the actual transaction value, the transfer value of the pertinent land should fall under the case where the real estate is less than one year after acquisition, or real estate is transferred by means of fraudulent means, such as preparation of a false contract, false transfer of resident registration, etc., and the transfer margin based on the standard market price by transaction unit is more than one hundred million won on the register of the register. However, the transfer margin based on the standard market price of the pertinent land is confirmed to be more than one year, while the transfer margin based on the standard market price of the pertinent land is confirmed to be more than one hundred thousand won on the register of the register, but the claimant entered into a contract for acquisition of the pertinent land, etc. with the 10 days after the 10 days after the 10 days after the contract for sale of 20,300,000 won, and the fact that most of the sale price was paid as an intermediate payment (92.7%) on August 30, 2006, and the payment date constitutes an unlawful payment method under Article 26(2)3) of the Income Tax Act.

Therefore, if the claimant holds the land at issue on the register for one year or more, it is judged that the disposition agency's rejection of correction by applying Article 96 (2) 5 of the Income Tax Act.

4. Conclusion

This case's request for a trial is with merit as a result of the hearing, so it is decided as ordered in accordance with Articles 81 and 65(1)3 of the Framework Act on National Taxes.

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