early 208west0205 (Law No. 8.29, 2008)

The transfer value, if any, of the real estate expected to be paid upon expropriation;

Where real estate is transferred due to expropriation, the transfer value shall be the sum of the amount actually paid and the amount of compensation to be paid at the time of expropriation in the future, or where it is impossible to pay compensation, the transfer value shall be the only amount actually

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

1. The Defendant’s disposition of imposition of capital gains tax of KRW 241,754,840 on October 4, 2007 and capital gains tax of KRW 118,279,660 on October 4, 2006 shall be revoked.

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

The same shall apply to the order.

1. Details of the disposition;

피고는, 원고가 김☆☆과 공동으로(이하, 원고와 김☆☆을 '원고 등'이라 한다) 원고 어머니인 이●● 명의로 2005. 10. 18. 서울 성북구 ★★동1가 144의 1, 144-2, 144-4 소재 다가구 주택 23 세대(대지 지분이 포함된 것으로서 원고의 지분은 1/2이었고, 이 하 '이 사건 부동산들'이라 한다)를 2,580,000,000원에 매수하여 별지 취득 및 양도 내역 기재와 같이 2005. 10. 18.부터 2006. 7. 27.까지 사이에 이 사건 부동산들 중 건물 부분에 대하여만 1,690,000,000원에 양도하고, 그로 인하여 발생한 양도차익 중 원고 지분에 해당하는 1/2 부분에 대하여 양도소득세를 납부하지 않았다는 이유로 2007. 10. 4. 원고에게 2005. 귀속 양도소득세 241,754,840원과 2006. 귀속 양도소득세 118,279,660원을 부과하는 이 사건 처분을 하였다.

[Reasons for Recognition] Evidence No. 3-1, 2, Eul evidence No. 1-3, Eul evidence No. 26-1 through 3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The sale by the plaintiff et al. does not transfer only the entire building of this case including the building and land, but it was virtually impossible for the plaintiff to receive compensation from the purchaser at the time of the sale because the right to move into the apartment was not allocated even if the urban development project was not implemented originally anticipated at the time of the sale. In this case, the transfer value of the real estate of this case shall be KRW 1,690,000,000, which was actually paid by the plaintiff et al., and even though there was no transfer marginal profit, the defendant did not sell only the part of the building of this case which was sold by the plaintiff et al., and there was no transfer marginal profit from the sale of only the part of the real estate of this case, and it was unlawful to impose transfer income tax on the 1/2 of the plaintiff share 1/2,000,000, since there was no transfer marginal profit from the transfer.

(b) Fact of recognition;

(1) 원고 등은 2005. 10. 18. 서울 성북구 ★★동1가 144의 1, 144의 2, 144의 4 등 3필지 소재 다가구 주택 23 세대(매수 당시에는 17 세대였으나 지분 쪼개기의 방법으로 6세대를 추가로 늘려 23 세대가 되었다)인 이 사건 부동산들을 2,580,000,000원에 매수하여 원고의 어머니인 이●● 명의로 소유권이전등기를 하였다.

(2) After October 18, 2005 to July 27, 2006, the Plaintiff et al. concluded a sales contract for each household of the instant real estate between the Plaintiff et al. and the 22 others, such as the acquisition and transfer details of the instant real estate, and around that time, the Plaintiff et al. completed the registration of ownership transfer for the relevant household. The contract stated that the subject matter of the sale was indicated as the instant real estate, and that the entire deposit for the sale real estate shall be attributed to the seller, and that the entire deposit for the sale real estate shall be attributed to the seller if it is accepted as part of the urban development project. The above sales contract was accompanied by a special agreement (only submitted to this court only for the fulfillment of some buyers stipulated in the above special agreement, but it seems that the contents of the above sales contract are equally applied to other buyers).

In the process of sale and purchase of the above real estate, only the right to purchase a special supply apartment for the removal of the above real estate was purchased.

The buyer does not have any right to the indemnity for removal of the real estate.

When the expropriation of ○○ real estate has become final and conclusive as part of an urban development project, the total amount of compensation to be paid by the Seoul Special Metropolitan City shall revert to the seller. The buyer shall pay the full amount of compensation to the seller immediately after the receipt of compensation. The seller shall have the right to the right to move in from each other, and the seller shall not exercise his/her authority over the payment of the full amount of the deposit for the lease of the relevant building and the full amount of the loan. The buyer shall be liable to pay all the expenses incurred from the relevant

(3) However, it is unclear whether an urban development project will be implemented in the area where the real estate of this case was located until about three years since the above sales contract was concluded, and the occupancy right which was anticipated to be received by the purchaser of the real estate of this case could not be received due to the modification of Municipal Ordinance of Seoul.

[Based on the recognition] Gap evidence 1, 2, Eul evidence 4-1 through 4, Eul evidence 5, Eul evidence 7-1, 2, Eul evidence 2-1 through 7, Eul evidence 3-1, 2, Eul evidence 5-1, 2, Eul evidence 5-2, Eul evidence 6-1 through 3, Eul evidence 7-1 through 3, Eul evidence 9-1, 2-2, Eul evidence 1-2, Eul evidence 1-3, Eul evidence 2-1 through 3, Eul evidence 2-1, 2-2, Eul evidence 2-1, 3-2, Eul evidence 2-1 through 3, Eul evidence 2-2, Eul evidence 1-2, Eul evidence 12, 13-1, 14-2, Eul evidence 15-1 through 3, 16-1 through 3-2, Eul evidence 1-3, 2-1 through 3-3, Eul evidence 2-2, Eul evidence 1 through 3-2-2, Eul evidence 1 through 3-1 through 3

C. Determination

In full view of the fact that a sales contract for the purpose of each household of the instant real estate was prepared and the registration of ownership transfer for each household exceeds the number of buyers in the future and the contents of the above special agreement, it is reasonable to deem that the transfer of the instant real estate by the Plaintiff et al. to the said buyer is a household of the instant real estate that could have been entitled to the right to occupy an apartment due to an urban development project in the future, and that the purchase price is the aggregate of the amount actually paid by the buyers and the amount of compensation that the instant real estate would have been expropriated in the future. Such determination does not change on the ground that the phrase “sale only of the building” is written in the sales contract (No. 8-2, No. 11-1, No. 25-1, No. 25) of the instant

On the other hand, the Income Tax Act adopts the so-called principle of confirmation of the right to taxable income by deeming the income as realizing the income in a case where the right that is the cause of the income does not actually accrue even if there is no income. However, even if the claim that is the cause of the income accrues, if it is objectively evident that the claim that is the cause of the income becomes impossible to recover due to the debtor's bankruptcy, etc. and it is impossible to realize the income in the future, the income tax that is the object of the economic gain loses its premise, and such income cannot be imposed on the basis of taxable income (see Supreme Court Decision 2001Du1536, Oct. 25, 2002).

According to the above facts, the purchaser appears to have acquired the real estate in this case for the purpose of acquiring the right to move into an apartment that can receive upon the development of the area where the location of the real estate in this case is located. It is unclear whether the land in this case will be implemented in the area where the real estate in this case after three years or more have passed since the conclusion of the sales contract, and the right to move into the real estate in this case was anticipated to be able to receive the purchaser of the real estate in this case due to the reasons such as the modification of the Seoul Municipal Ordinance. If this circumstance is the same, the compensation for the development that the plaintiff et al. would have received from the above sales contract cannot be received as the present, and even if the development project is confirmed and the Seoul Special Metropolitan City policy changed, it seems that it is practically impossible to receive the compensation that the purchaser would actually receive from the purchaser due to the delay in the development project and deliver it to the plaintiff. Accordingly, the transfer value related to the transfer of the real estate in this case was less than the acquisition value of the real estate in this case and the transfer value of the real estate in this case.

Therefore, the instant disposition that imposed capital gains tax on the Plaintiff is unlawful on the premise that only the building portion of the instant real estate, which is not the entire real estate, including land and buildings, was transferred, and that there was a mistake in the transfer.

3. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the illegal disposition of this case is justified and acceptable.