Cho High Court Decision 2009Da3522 ( December 30, 2009)

Acquisition time of transferred land

Since it is not clear that the date of liquidation is the date of acquisition of land, it is legitimate to regard the date of acquisition as the date of receipt of ownership transfer registration stated in the register

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

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

The Defendant’s disposition imposing capital gains tax for the year 2007 against the Plaintiffs on April 2, 2009 shall be revoked.

1. Details of the disposition;

A. ThisA completed the registration of ownership transfer on September 28, 1990 with respect to 0 ○○○○○-dong 651 m256 m2 (hereinafter “land before subdivision”). The land before subdivision was subdivided into 1,653m2 (the administrative district was changed to ○○○○-dong 651, Jul. 15, 1997) and 651-1 m2,603m2.

B. On June 3, 1999, the Plaintiffs completed the registration of transfer of right to file a lawsuit on the instant land on the grounds of sale on May 1, 1999 and shared the instant land. The Plaintiff B had 7,100 shares of 165,30 shares, 55,132 shares of 165,30 shares, and 33,068 shares of 165,30 shares of 165,30 shares of 165,30.

C. On November 30, 2007, the Plaintiffs reported and paid the transfer income tax to the Defendant on August 28, 2007 with the following contents. At the time of reporting, the Plaintiffs attached a sales contract on May 1, 1999, a certificate of transaction under the name of thisA, and a loan agreement on April 15, 1994. The above sales contract was written as of June 3, 199. The remainder payment date was written as of June 3, 199, and the loan agreement was written as this was written as DD, B, andCC with the borrower as of this case’s loan, and the borrower’s payment of remainder with the Plaintiff 0 ○○ 651, 651, ○○○○○○, ○○○, 651, which was owned by the Plaintiff and two others, the right holder should withhold the registration of ownership transfer according to the circumstances of the purchaser, convert the purchase and sale amount into the remaining real property for collateral loan, and set the remainder of ownership to the purchaser.

(1) Acquisition date: April 15, 1998.

(2) Transfer date: September 28, 2007

(3) Acquisition value: Plaintiff B 284,519,056 won, Plaintiff ACC 203,451,421 won, Plaintiff BD 122,029,522 won (total of 610,000,000 won)

4. Transfer value: Plaintiff B 406,722,323 won, Plaintiff ACC 290,835,474 won, Plaintiff BD 174,442,202 won (total amount of KRW 872,00,000)

⑤ Voluntary payment tax amount: Plaintiff B 22,314,780 won, Plaintiff 13,391,676 won, Plaintiff JD 6,168,339 won

D. As a result of the investigation of the contents of the sentence of capital gains tax as above, the Defendant confirmed the fact that the acquisition value, transfer value, and acquisition time was falsely reported on June 3, 1999, which is the date of receipt of the transfer of ownership recorded in the registry. On April 2, 2009, the Plaintiffs: (a) deemed the instant land as non-business land; (b) excluded the special long-term holding deduction; and (c) applied the heavy tax rate of 60% to the Plaintiff B, 231,959,701 won for the transfer of the instant land, 144,305,70 won, and (d) applied the heavy tax rate of 60% to Plaintiff B, 207, 320,484,515 won for the capital gains tax for the transfer of the instant land, 231,959,701 won for Plaintiff C,14,305,844 won for each of the instant dispositions (hereinafter referred to as “instant dispositions”).

E. On June 15, 2009, the Plaintiffs were dissatisfied with each initial disposition of this case, filed an objection with the Defendant on September 25, 2009, and filed an appeal with the Tax Tribunal for adjudication on September 25, 2009. On December 30, 2009, the Tax Tribunal rejected the Plaintiffs’ assertion that the Plaintiff acquired the land of this case from thisA on April 19, 2009, without accepting the Plaintiffs’ assertion that “the acquisition price of the land of this case shall be the acquisition price converted under Article 176-2(2) of the Enforcement Decree of the Income Tax Act by taking into account the area before and after replotting, and the said tax base and amount shall be corrected.”

F. In accordance with the purport of the above decision, the Defendant reduced and corrected capital gains tax for the year 2007 from each initial disposition of this case to KRW 278,989,310 in the case of Plaintiff B, KRW 208,551,540 in the case of Plaintiff B, and KRW 126,693,410 in the case of Plaintiff B, and KRW 126,693,410 in the case of Plaintiff B, respectively (hereinafter “each disposition of this case”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 8, 10 evidence, Gap evidence 3-1 through 3, Gap evidence 7-2, Eul evidence 7, 9, Eul evidence 1 through 5, and Eul evidence 8 (including each number), the purport of the whole pleadings and arguments

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

1) On March 27, 191, the Plaintiffs: (a) purchased KRW 500,000,000 from the land before subdivision from thisA to thisA; (b) paid the down payment of KRW 15,000,000 to this day; (c) later, on April 11, 1991, this HH paid KRW 60,000 as an intermediate payment to thisA; and (d) on April 29, 191, this Fund paid KRW 75,00,000,000,000 to the Kim-individualJ from among the co-principals of thisA and of April 29, 191.

2) However, thisA did not immediately complete the registration of ownership transfer with respect to 500 square meters out of the land before subdivision, on the grounds that the AA was donated to 500 square meters out of the land before subdivision, and that the AA had set up a farmer on the land before subdivision, and that the AA did not immediately complete the registration of ownership transfer with respect to the land before subdivision to the Plaintiffs and HaH. Therefore, in order to secure the obligation to implement the procedures for the registration of ownership transfer with respect to the land before subdivision as KRW 100 million, EA completed the registration of ownership transfer with respect to the land before subdivision as KRW 100 million. After the registration of ownership establishment was terminated due to a replotting disposition following the implementation of the division rearrangement, this case’s land and ○○○○○○○-dong 651-1 1,603 square meters again on April 16, 1994.

3) Meanwhile, the purchase price of the instant land in KRW 150 million was KRW 70 million by Plaintiff B, KRW 35 million by this HH, KRW 15 million by Plaintiff ACC, and KRW 30 million by FF invested in the instant land. Since then, this H transferred its shares in the instant land to Plaintiff ACC, and the FF transferred its shares in the instant land to Plaintiff BCC, the actual purchaser, and the FF transferred its shares in the instant land to Plaintiff DD.

4) Therefore, the plaintiffs acquired the land of this case from thisA in KRW 150 million, and paid the remainder KRW 75 million on April 29, 1991, which was actually acquired as of April 29, 191, which was the date of acquisition, and construction permission could not be obtained due to the delay in the land partitioning project of this case and the lack of infrastructure at the time of transfer. Accordingly, each of the dispositions of this case on different premise is unlawful, even though the land of this case should be deemed the land for business purposes and should be subject to the long-term possession special deductible and basic

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

1) The receipt of April 11, 1991 (Evidence A-5-1) states that "○○○○○○○○○○ 651,000,000 won as an intermediate payment, and "the above recipient shall return to the Fund," and "the receipt of April 29, 1991 (Evidence A-5-2)" states that "○○○ ○○ 65,000,000 won as an gold payment out of the sales amount of 651, ○○ 651, ○○ 651, and ○○ 651, ○ ○○ ○ 651, and ○ ○ ○ ○ ○ 651, the receipt shall be received, Kim J-J, and Ha F Return."

2) The documents of joint investment amount (Evidence 6) dated March 27, 1991 indicate that “○○○○○○○○○○-dong 651-1 500 million KRW 150,000 KRW 70,000 KRW , 35,000 KRW , 350,000 KRW , 230,000 KRW , 15,000 KRW ,0000 KRW , 27,0000 KRW , 191.”

3) As to the land before subdivision, the registration of creation of a neighboring mortgage with the mortgagee as F on July 25, 1991, was revoked on the ground of termination on March 15, 1994. As to the instant land and the instant land, ○○○○○-dong 651-1,603 square meters, the maximum debt amount was KRW 100 million, and the registration of creation of a mortgage to FF with the mortgagee on April 16, 1994 was revoked on the ground of termination on August 1, 2007.

4) On August 14, 1998, the head of the ○○ Metropolitan City head authorized the implementation of the land readjustment project of ○○○ and ○○○○○-338 by means of announcement 1998-338, and on March 14, 2007, the project period of the above project was changed from August 14, 1998 to August 13, 2005 to "from August 14, 1998 to August 13, 2005" and the changed project plan was changed to "from August 14, 1998 to August 13, 2010."

[Ground of Recognition] without dispute, Gap evidence 1, Gap evidence 5-1, 2, and Gap evidence 6-9, and the result of this court's appraisal commission to KR

D. Determination

First, we examine the acquisition date of the land of this case.

Article 162(1)1 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter the same) which is delegated by Article 98 of the Income Tax Act provides that "the time of acquisition and transfer of assets shall be determined by Presidential Decree" when the date of liquidation of the price of the assets in question is an exception to the time of acquisition or transfer, and the date of liquidation is unclear, the date of receipt of registration recorded in the register shall be the time of acquisition or transfer. The above Enforcement Decree provides that "the date of receipt of assets recorded in the register" shall be the time of acquisition or transfer in calculating gains from transfer of assets, but the above provision does not necessarily provide that the said provision shall be applied only when calculating gains from transfer of assets. In addition, if there is a dispute over the time of acquisition, it is contrary to the spirit of the taxation requirements and non-taxation requirement, and if the time of acquisition is determined otherwise, it shall be determined as the time of acquisition as it applies to the case (see Supreme Court Decision 195Du198, Dec. 19, 1998). 198).

The evidence of this case is consistent with the plaintiffs' assertion on April 29, 191 that the date of acquisition of the land of this case is 1,2, 6, 11, 1, 12, and 13, and the witness of this case's testimony. However, the following circumstances are as follows: (1) the plaintiffs themselves declared that the transfer registration of the land of this case was not made on April 15, 1998, and the transfer registration was not made on April 15, 1998, and it is difficult for the plaintiffs to claim that the transfer registration was made on the land of this case to secure the maximum amount of 1,50 million won; (2) the plaintiffs were not on the sale contract prepared on March 27, 1991 as evidence for the sale agreement of this case; and (3) the plaintiffs were not on the sale contract prepared on the land of this case for the purpose of establishing the mortgage of this case to secure the ownership of the land of this case as 1,500 million won.

Therefore, in each disposition of this case, it is justifiable to consider the date of acquisition of the land of this case as June 3, 199, which is the date of receipt of ownership transfer registration recorded in the register book, and this is after the authorization of the land readjustment project of ○○○○ and the ▽▽△△ district was granted. As such, the plaintiffs' assertion based on the premise that the plaintiffs acquired the land of this case from thisA on April 29, 191, the land of this case in KRW 150 million is without merit.

3. Conclusion

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