Cho-2015-China-390 ( November 25, 2015)

Investment in kind of assets in a partnership shall be the commercial transfer of assets, which is the cause of taxation of the capital gains tax.

The investment in kind of assets to a union constitutes the transfer which is a taxable cause of capital gains tax as the onerous transfer of assets, and the time of such transfer is the time of the investment in kind to the union, and the time of acquisition and acquisition by the natives directly supplied with the land for living countermeasures shall not be deemed the same as the time of acquisition and acquisition by the plaintiffs who take over

Article 14 of the Framework Act on National Taxes

2016Gudan367 Revocation of Disposition of Imposing capital gains tax

Ma 0 Jeju

O0 Head of tax office

November 14, 2017

January 9, 2018

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 20,558,866 for the Plaintiff on May 1, 2015 is revoked.

1. Details of the disposition;

가. 0000시장은 00신도시 조성을 위한 공유수면매립 공사의 사업지구 내에서 조개채취 등 어업을 영위하던 인천 @@, ##, &&, ** 어촌계원 등에게 2005. 3.경부터 2005. 7.경까지 1인당 165㎡의 생활대책용지를 특별공급하였다.

나. 위 생활대책용지는 대금 완납 전 1회에 한하여 매수인 명의를 변경할 수 있었는데, 원고는 원어민 정00로부터 인천 00구 @@동 22-22 소재 생활대책용지 중53분의 1 지분(이하, '이 사건 토지'라 한다)에 관한 권리의무를 취득하고, 2006. 2. 8. '2005. 6. 9.자 매매'를 원인으로 소유권이전등기를 마쳤다.

C. On May 1, 2015, the Defendant decided that the time of transfer of the instant land was August 21, 2007, which was the date of the receipt of the final trust registration, the date of acquisition was June 9, 2005, which was the date of the registration of transfer of ownership, the average value of 520,279,868 won, and the acquisition value was 161,494,871 won, which was the converted value, and the transfer value was 25,44,048 won, which was the converted value.

D. On November 25, 2015, the Tax Tribunal filed a request for adjudication with the Tax Tribunal. On November 25, 2015, the date of acquisition is the date of receipt of the transfer registration of ownership of the land of this case. The acquisition price is confirmed by each plaintiff specific transaction details, such as the time of acquisition of the land of this case, and the acquisition price is determined as partial acceptance of acceptance of application under Articles 96 and 114 of the former Income Tax Act (amended by Act No. 8825, Dec. 31, 2007; hereinafter the same shall apply) and Article 176-2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20516, Dec. 31, 2007; hereinafter the same shall apply).

E. Accordingly, on December 30, 2015, the Defendant conducted a reinvestigation in accordance with the purport of the above decision by the Tax Tribunal, calculated KRW 491,523,333, the average appraisal amount assessed by the appraisal corporation on the instant land and adjacent land as acquisition value, and corrected and notified the reduction of capital gains tax of 20,558,866 for the year 207 (hereinafter “the disposition of imposition of capital gains tax of this case”).

Parcel Number

Unit Price

Total

Point of Time

Evaluation Institute

Purpose of assessment

22-21

2,750,000 won

464,440,00 won

May 25, 2006

An appraisal corporation 00 appraisal corporation

Security

22-21

3,390,000 won

562,740,00 won

November 10, 2006

㈜☆☆감정평가법인

Security

20-22

2,700,000 won

47,390,000 won

September 30, 2005

㈜◎◎◎감정평가법인

Security

[Ground of Recognition] Unsatisfy, Gap evidence 1, 4 through 5, and Eul evidence 1 to 9, each entry and change

The purpose of the whole theory

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Do and claim for exclusion period of imposition

The transfer time of the instant land is deemed to have been made by the investment in kind on February 8, 2006, when the trust registration was completed in the name of △△ Trust Co., Ltd., and the transfer time of the instant land was made with the lapse of seven years from the exclusion period of imposition.

2) The allegation of illegality in the calculation of acquisition value

A) The Plaintiff is entitled to KRW 597,580,000, the acquisition value of the instant land, which is the same acquisition value as the original fishing operator, in calculating the transfer income tax, since the Plaintiff comprehensively succeeded to the rights, obligations, and legal status of the instant land from the original fishing operator by allowing 00 Metropolitan City to change the name of the original fishing operator once.

B) In calculating the transfer income tax, if the actual transaction value of the instant land is unclear, the Defendant should have calculated the transaction example by taking the acquisition value as the acquisition value.

C) Even if the acquisition value is calculated based on the appraisal value, the average amount assessed by more than two appraisal institutions with respect to the land Nos. 22-22 should be calculated by adding up the appraisal value of “22-21, 22-22, and 20-22.”

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) Determination on the Do and argument for exclusion period of imposition

A) Facts of recognition

○ 이 사건 토지 등의 지주들은 공동주택을 건축하기로 하고 2005. 8.경 추진위원회를 결성하였다. 주식회사 ■■■△△(이하, '■■■'라 한다), 주식회사 ◎◎◎(이하, '◎◎◎'이라 한다), ♤♤♤ 주식회사(이하, '♤♤♤'이라 한다), ▣▣▣▣주식회사(이하, '▣▣▣'라 한다) 등 4개 시행대행사는 2006년경까지 각자 지주들 개개인을 상대로 지주공동사업약정(이하, '1차 공동사업약정'이라 한다)을 체결하는 방법으로 토지들을 확보해나갔다.

Pursuant to the trust agreement entered into with the trust company, ○○ joint business agreement, etc. such as 1028-1, 2 joint construction association, 1028-7, and 8 joint construction association, etc., the subjects, who entered into the first joint business agreement, submitted to the executor agency an application for membership, written consent for land use, power of delegation, etc., were established under the lead of the executor agency. Pursuant to the trust agreement entered into with the trust company (hereinafter referred to as ○○ Trust Co., Ltd., hereinafter referred to as “instant collateral trust agreement”), the trust company as trustee has completed the registration of ownership transfer for each ownership portion (hereinafter referred to as “the Plaintiff”).

The main contents of the first joint agreement were that members and enforcement agencies jointly develop the land, etc. of this case as main multi-family apartment, but the partnership members provided shares to the executor, and the executor shall provide the partnership members with one household of the main multi-family apartment house of 50 square meters in sale volume, and deal with loans, etc. to the partnership members for the land price of 70 million won in the land for livelihood countermeasures against the union members. In addition, the security trust agreement of this case was the content that the trustee preserves and manages the trust real estate for the purpose of trust, the settlement of the trust real estate in order to guarantee the truster's management of the ownership of the trust real estate and the performance of the liabilities or responsibilities owed by the truster, and the trust real estate was the original trust, the loan principal and interest accrued from the credit transaction as the principal of the trust, the scope

○ 위 시행대행사들이 지주들에 대한 1차 공동사업약정을 체결해나가던 중 ■■■와 ◎◎◎은 주식회사 ◐◐◐◐개발(이하, '◐◐◐'라 한다)에 사업권을 양도하여 시행대행사가 ◐◐◐, ▣▣▣, ♤♤♤ 3개사로 변경되었다. 이들 3개 시행대행사는 2007년경 1차 공동사업약정이 진행되던 @@동 21-59, 60, 64, 65 토지와 @@동 20-22, 23 토지 등 8개 필지를 하나의 단지로 하여 주상복합타운을 건설하기로 합의하고, 시공사로 ㅁㅁ건설 주식회사와 주식회사 □□건설 컨소시엄을 선정하였다.

Around 2007, the props entered into a prop joint business agreement (hereinafter referred to as the "second joint business agreement") with the changed implementing agent and the contractor, and entered into a joint construction association with the two existing and four reorganizations around March 2007, and entered into a trust agreement with the Korea Asset Trust Co., Ltd. (hereinafter referred to as the "Korea Asset Trust", and the Si Corporation (hereinafter referred to as the "Korea Asset Trust Agreement") and the trust agreement (hereinafter referred to as the "Management Trust Agreement"), and entered into a registration of ownership transfer (hereinafter referred to as the "Plaintiff") with respect to the share of land ownership as the trustee from July 2007 to December 2007.

Unlike the first joint project agreement, the management trust agreement of this case clearly stated the construction plan such as the total floor area, number of floors, and number of households of the main complex apartment, etc., and the management trust agreement of this case as trust property, for the purpose of trust, "as the principal of the trust, the sales price, etc. of the real estate and the trust property as trust property, and the trust proceeds, which deducts various costs and trust fees from the trust property and the operating income from the trust property, were the scope of priority interest, and the warranty liability for new buildings, etc. were stipulated.

○ As above, each joint building association, etc., which has been reorganized into four as above, entered into a contract for new construction works with the contractor around April 2007, and its new construction works were completed on or around January 201, and the plaintiffs, including the plaintiff, were sold in lots one household for 50 square-type apartment buildings.

[Reasons for Recognition] Facts without a dispute, the aforementioned evidence, and the purport of the whole pleadings

B) Determination

Article 88(1) of the former Income Tax Act defines "transfer" as "transfer at a cost due to sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of an asset." The assets invested in a cooperative are jointly owned by partners and investors acquire the status of partners in return for the investment. As the assets invested in a cooperative are transferred at a cost as the assets are transferred at a cost, which is a taxable cause of capital gains tax, and the time of transfer is when the assets are transferred at a time of investment in kind (see, e.g., Supreme Court Decision 200Du5852, Apr. 23, 2002).

In full view of the following circumstances revealed by the above relevant laws and principles, and the above facts, the conclusion of a partnership agreement alone cannot be deemed as the investment in kind by union members. The investment in kind in the land of this case to an association established for the construction of collective housing on the land of this case was not made through the first joint project agreement or the first trust, but by the second joint project agreement, the second joint project agreement was concluded, and the joint building association was reorganized into four as above, and the second trust registration was completed under the management trust agreement of this case from July 2007 to December 2007. Accordingly, the instant tax disposition was made within seven years from the expiration date of the exclusion period of imposition, which is the day following the final return of the tax base of capital gains tax on the investment in kind of the land of this case. Thus, the Plaintiff’s allegation in this part is without merit.

On September 2005, the "○○-1028-1, 2 joint building associations" and "1028-7, and 8 joint building associations" were established, etc., the enforcement agencies secured land by entering into a primary joint project agreement against each individual of the props, and thus, they did not join the joint building association. Since the props affiliated with the joint building association have submitted a written consent to land use, power of attorney, etc., it cannot be said that not only the formal aspect of registration but also the investment in kind of land has been made to the joint building association.

Even though the ultimate objective of 'the provision of an apartment household through the joint development of a primary apartment is stipulated in the primary joint project agreement, this is merely an agreement that the executing agency agreed on the degree of resolution of the problem, such as the loan of land price, without any specific construction plan, in the process of securing the land in the project zone. Therefore, the instant security trust agreement also places an important point in securing the loan, and does not stipulate any content as to the building, etc. to be newly constructed. In light of this, it is difficult to view that the instant joint project agreement, the instant security trust agreement, or the instant security trust agreement, or the instant security trust agreement, or the first trust agreement, was made for the construction of an apartment house.

○ 1차 공동사업약정과 이 사건 담보신탁약정 및 제1신탁이 있은 후 ■■■ 등 4개 시행대행사가 ◐◐◐ 등 3개로 변경되었고, 변경된 시행대행사들과 지주들 사이에 새로이 2차 공동사업약정이 체결되었으며, 현물출자의 상대방인 공동건축조합도 '21-59 공동건축조합', '21-60 공동건축조합', '21-64 공동건축조합', '21-65 공동건축조합' 등으로 개편되었다. 그리고 2차 공동사업약정에는 시공사가 참여하여 구체적인 건축계획 등이 명시되었고, 이에 따른 이 사건 관리신탁약정도 신축되는 건물과 분양대금 등의 관리‧운용에 주안점을 두고 신축건물에 대한 하자담보책임 등을 규정하였으며, 신탁등기 역시 제1신탁이 해지되고 새로이 제2신탁이 이루어졌다. 이러한 점에 비추어 보면 2차 공동사업약정 및 이 사건 관리신탁약정이 1차 공동사업약정 및 이 사건 담보신탁 약정과 동일성을 갖고 그 연장선상에서 체결되었다고 할 수 없다.

The members of each joint construction association for the construction of multi-family housing, including the plaintiff, were decided by concluding the second joint project agreement with the plaintiff, and the apartment building project could also be actually conducted under the detailed construction plan of the second joint project agreement.

The props, including the Plaintiff, acquired the status of members of the 21-59 Joint Building Association, 21-60 Joint Building Association, 21-64 Joint Building Association, 21-64 Joint Building Association, 21-65, and 21-65, which promoted the construction of apartment houses after the second joint project agreement, and concluded the management trust agreement of this case and implemented the second trust with respect to each share of ownership as the investment obligation of the members of the building site as the provision of the building site. In other words, as a consideration for the acquisition of the status of members of each joint building association, the investment in kind of the land in this case was carried out with the second joint project agreement - the management trust agreement of this case - the management trust agreement of this case - the second trust agreement - the land in this case can be provided as the building site under the management of the Korean

2) Determination as to the illegality of the acquisition price computation

A) Determination on the first argument

In addition to the purport of the arguments in the above evidence, the Defendant calculated the acquisition value of the land used for livelihood of the original members of the Tax Tribunal as the average value of KRW 597,580,00,000, which is the value determined by the Tax Tribunal, and instead, against the original members of the original members of the Tax Tribunal, the Defendant would have recognized the fact that the Defendant did not issue a tax payment notice on the ground that the transfer loss occurred (transfer value of KRW 520,572,00 - acquisition value of KRW 597,580,000 = transfer loss = transfer value of KRW 77

However, even if the right to change the purchaser's name was granted one time in supplying the land for livelihood countermeasures to the original fishermen, and the Plaintiff entered into a contract to succeed to such rights and obligations from the original fishermen, the Plaintiff's succession to the Plaintiff under the contract is merely a right and obligation to the land itself, which is the object of the contract, and is given to the original fishermen themselves or the status of the original fishermen who have transferred it, and thus, it cannot be deemed that the Plaintiff succeeds to benefits arising from the right to change the purchaser's name, which assumes that it belongs to them. Thus, in calculating the gains on transfer, it is reasonable to individually determine the gains on transfer pursuant to Articles 96 and 114 of the former Income Tax Act and Article 176-2 of the former Enforcement Decree of the Income Tax Act, and it cannot be deemed that the acquisition time and acquisition value of the original fishermen who have been directly supplied with the land for livelihood countermeasures from the 00 Metropolitan City are the same as the Plaintiff's acquisition time and acquisition value of the land. Therefore, as alleged by the Plaintiff, the Plaintiff's error in this part of this case cannot be asserted.

B) Judgment on the second argument

Article 114 (7) of the former Income Tax Act provides that in cases where the acquisition value is based on the actual transaction value and where it is impossible to recognize or confirm the actual transaction value at the time of acquisition of the relevant assets by books or other documentary evidence due to the reasons as prescribed by the Presidential Decree, the acquisition value may be determined by the estimation based on the transaction example, appraisal value, conversion value, or standard market value, etc. as prescribed by the Presidential Decree. In cases where the acquisition value is determined by the estimation, Article 176-2 (3) of the former Enforcement Decree of the Income Tax Act provides that where there are transaction cases of assets having identity or similarity with the relevant assets within 3 months after the acquisition date, the value thereof, and where there are appraisal values deemed to be credibility by 2 or more appraisal corporations with respect to the relevant assets within 3 months after the acquisition date

On the other hand, since the tax authority bears the burden of proving the legality of taxation, in principle, the tax authority bears the burden of proving necessary expenses, which are the basis of the determination of taxable income. However, the deduction of necessary expenses is more favorable to the taxpayer, and most of the facts constituting the basis of necessary expenses are located in the controlled area of the taxpayer. Thus, the tax authority has difficulty in proving it, and if it is reasonable to have the taxpayer prove it, taking into account the difficulty in proving it or equity between the parties, it should be returned to the taxpayer (see, e.g., Supreme Court Decision 91Nu109, Jul. 28, 1992)

이 사건에 관하여 보건대, 앞서 본 증거들에 변론 전체의 취지를 더하여 보면, 원고의 주장과 같이 이 사건 토지의 취득일 전후 3개월 이내에 이 사건 토지의 지번 및 인근 지번 토지의 매매사례가 존재하기는 하나, 당시는 @@ 신도시의 부동산가격이 급등하던 시기로 생활대책용지를 분양받을 수 있는 권리(일명 '조개딱지')도 특별공급계약일 이전에 원어민에서 제3자에게 대부분 매도되어 수억 원의 웃돈이 붙어 전전 거래되었던 것으로 보이는바(토지의 공급가격이 69,888,230원에 불과하였음에도 불구하고), 위 매매사례가 일반적이고 정상적인 방법으로 이루어져 양도일 당시의 이 사건 토지의 객관적 교환가치를 적정하게 반영하고 있다고 볼 수는 없으므로, 원고의 이 부분 주장도 이유 없다.

C) Determination on the third argument

Article 176-2 (3) of the former Enforcement Decree of the Income Tax Act provides that the average value of the appraised value shall be calculated as the acquisition value if the appraisal value is deemed reliable within three months before and after the date of acquisition by two or more appraisal corporations on the relevant assets.

According to the above facts, since there is no appraised value assessed by two or more appraisal corporations on the instant land within three months before and after the date of acquisition of the instant land, the Defendant should have calculated capital gains tax by converting the acquisition value of the instant land into the standard market price. However, according to the decision of the Tax Tribunal, the Defendant calculated 491,523,333 won, the average appraised by the appraisal corporation on the instant land and neighboring land, which is favorable to the Plaintiff, as the acquisition value, and issued the instant disposition. As the average appraised value applied as the acquisition value of the instant land, is more favorable than the conversion value calculated as the standard market price stipulated by law, the instant disposition is unreasonable for the Plaintiff. Accordingly, this part of the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed. It is so decided as per Disposition.