early 209Gu0297 (2009.04.08)

Whether a house can be deemed to be transferred if the house was removed before the remainder payment date;

Transfer income tax shall not be deemed to have been transferred because assets themselves were not existing as of the date of settling the balance, because the transfer income tax is subject to the transfer gains acquired by a transferor who is not itself, that there was a house at the time of conclusion of a sales contract, and that there was no transfer of a house.

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

Article 4 (Classification of Income)

Article 88 (Definition of Transfer)

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 619,897,730 for the Plaintiff on January 12, 2009 shall be revoked.

1. Circumstances of the disposition;

A. On August 29, 2003, the Plaintiff acquired 650,000,000 won for multi-household housing (12 district) of 4 stories above the ground of reinforced concrete structure sloping roof (12 district) and 538.65 square meters above 4 stories above the ground of the instant land (hereinafter “instant housing”) by ○○-gu ○○-dong 3, 121-1 and 311.7 square meters (hereinafter “the instant land”). The Plaintiff acquired 650,000,000 won for combined land and housing.

B. On April 23, 2005, the Plaintiff entered into a sales contract to sell the instant real estate to Non-Party 1,950,000,000 won to Non-Party 1,950,000,000, and received the down payment of KRW 160,000 on the day of the contract, and received the intermediate payment of KRW 1,205,000 until September 1, 2005, and received KRW 585,000,000 on October 12, 2005 after destroying the instant housing at the expense of the non-party company.

C. On October 28, 2005, the Plaintiff: (a) calculated gains on transfer based on the standard market price of the instant land by deeming only the instant land among the instant real estate to have been transferred; and (b) reported and paid capital gains tax for the year 2005 with the transfer income tax of KRW 688,740.

D. After conducting a field investigation on the transfer income tax imposed by the Plaintiff, the Defendant: (a) deemed that all of the instant land and the instant land and the relevant appurtenant land are transferred; and (b) determined and notified the Plaintiff on January 12, 2009 that the transfer income tax for the said transfer was KRW 619,897,730 for the transfer income tax for the year 2005 calculated gains from transfer based on the actual transaction price (hereinafter “instant disposition”).

E. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on January 22, 2009, but the Tax Tribunal dismissed the Plaintiff’s appeal on April 8, 2009.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5 (including natural disasters; hereafter the same shall apply in this subparagraph), Eul evidence Nos. 1, 2, 3, 6, and 8, and the purport of the whole pleadings

2. Whether the dispositions of the instant case are legal.

A. The plaintiff's principal

(1) A statement that the subject matter of sale is limited to the land

The non-party company purchased the instant land on the ground of the instant land, and there was no reason to purchase the instant land, and the Plaintiff also destroyed the instant land for the purpose of saving water and transferred only the instant land. Thus, the instant disposition, other than the instant land, premised on the Plaintiff’s transfer of the instant housing, is unlawful.

(2) The principal that the instant house may not be subject to taxation because it was destroyed at the time of the transfer.

The time of transfer, which is the time of taxation of capital gains tax, is clear that the sale price is settled, and even if the instant housing was included in the subject matter of a sales contract concluded between the Plaintiff and Nonparty Company, the instant housing cannot be deemed to have been transferred based on the balance payment date, which is the time of transfer, due to the loss before the remainder payment date. Thus, the instant disposition imposing capital gains tax on the premise that the instant housing exists at the time of transfer is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On April 7, 2003, the Plaintiff purchased the instant land and the instant housing on its ground from Non-Party Lee Byung-hee (Shee obtained approval for the use of the instant housing as of August 6, 2002, and completed registration for the preservation of ownership on August 17, 2002) in KRW 650,00,000 on condition of the remainder payment on August 21, 2003, and completed the registration for the transfer of ownership on August 29, 2003.

(2) The main contents of the sales contract concluded between the Plaintiff and the Nonparty on April 23, 2005 (hereinafter “instant sales contract”) are as follows.

(3) 소외 회사는 2005. 6. 21. 주식회사 ★★산업개발과 이 사건 부동산이 포함되어 있는 대구 ○○구 ○○동3가 105 외 173필지에 관하여 착공일 2005. 10. 1., 준공예정일 2005. 12. 31.로 하는 '○○동 재개발 철거공사' 도급계약(2005. 12. 19. 준공일을 2006. 2. 28.로 변경)을 체결하고 위 ★★산업개발을 통하여 이 사건 주택을 철거하였고, 그 후 2005. 10. 12. 이 사건 주택의 건축물대장이 말소되고, 같은 달 13. 이 사건 주택에 관하여 '2005. 10. 12. 멸실'을 원인으로 한 건물멸실등기가 경료되었다.

(4) Meanwhile, the date of removal on September 2, 2005 under the Plaintiff’s name was from September 8, 2005 to October 30, 2005, and the report of removal or destruction of the instant house was filed, and around October 12, 2005, the Plaintiff filed an application for cancellation of the building ledger. The Plaintiff received a balance of KRW 585,000,000 from the Nonparty Company for the purchase price of KRW 1.950,000,000 from October 18, 2005.

(5) On November 19, 2008, the Plaintiff was subject to the instant tax investigation by the Defendant, and on August 21, 2003, the Plaintiff acquired and possessed the said multi-family house, which is the object to be transferred with the said indication, at KRW 650,000,000, from the Lee Jong-hee on August 21, 2003, and entered into a sales contract with 1,950,000,000 sales price, at the apartment implementer (ju) 23, 2005, and delivered the said multi-family house after receiving the remainder of 585,00,000,000 on October 18, 2005, and prepared a confirmation document stating that the house removal was removed from △△△△, who was the purchaser, from the purchaser (ju).

[Reasons for Recognition] The aforementioned evidence, Eul evidence Nos. 4, 5, and 7, and the purport of the whole pleading

D. Determination

(1) Whether the subject matter of the contract of this case includes the house of this case

The following facts acknowledged by the above facts are as follows: ① although the indication of the object of manufacture and sale in the sales contract of this case includes only the land of this case, it is stated as 12 households in the remarks column of Article 2, the size of the land of this case and the total amount are stated in the sale price indication, and other special terms and conditions include the Plaintiff’s provision of registration rights to the land of this case and the building of this case to the non-party company. ② When the land of this case is constructed and sold, only the land of this case can be purchased and sold unless the building of this case is worn out to the extent that it can not be used as a house. Furthermore, it seems difficult to understand that the Plaintiff’s assertion that the non-party company purchased and sold the land of this case except for the land of this case, which was newly constructed on August 202, because it was difficult to obtain the right of the non-party company to purchase and sell the land of this case before the purchase and sale of the housing of this case. ③ The Plaintiff is not responsible for the removal of the land of this case and the building of this case.

Therefore, this part of the plaintiff's assertion is without merit.

(2) Whether, as a taxation requirement, the house in the case on the date of the remaining salary grade should exist

In light of the fact that the Income Tax Act, regardless of the registration or enrollment of assets, provides that the assets are actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., and that the transfer income tax provides that "transfer income tax" shall be imposed on the income (gains accruing from transfer) acquired by the transferor from such transfer, the transfer income tax shall not be subject to taxation on the "property subject to transfer" itself, which is the income acquired by the transferor, and it shall not be subject to taxation on the date of liquidation under the Income Tax Act as of the date of transfer. Thus, it shall not be required that the assets themselves remain there as of the date of liquidation under the Income Tax Act, which is defined as the date of transfer. In other words, at the time of the conclusion of the sales contract of this case, the sale contract of this case was included not only in the land of this case, but also in the housing of this case at the time of the transfer contract, and furthermore, the plaintiff, the transferor, received the entire payment of the purchase price under the sales contract of this case from the non-party company, and even if the land was removed before the payment date of this case.

Therefore, there is no reason for the plaintiff's assertion on this part.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.