Seocho 2015Seoul Northern 5811 (24 December 2016)

Since the instant real estate was not for the purpose of transfer, but for sale, the date of transfer of ownership shall be deemed the acquisition of real estate.

Since the instant real estate was not the purpose of transfer for security, but the date of transfer of ownership, etc. is deemed the acquisition of real estate, the instant disposition without special deduction for long-term holding, etc. is unreasonable.

Articles 88 and 98 of the Income Tax Act, and Article 151 of the Enforcement Decree of the Income Tax Act

2016Guhap61969 Revocation of imposition of capital gains tax

Mad○

○ Head of tax office

November 18, 2016

January 11, 2017

1. Each disposition of the Defendant imposed capital gains tax of KRW 803,910,570 (including additional taxes) for the year 2010, which was rendered by the Plaintiff on November 4, 2015, and capital gains tax of KRW 688,919,090 (including additional taxes) for the year 2011 shall be revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On November 22, 1986, the Plaintiff completed the registration of transfer of ownership on the ground of "trade on November 22, 1986, 1986, 00 m20 m20 m20 m2 (hereinafter referred to as "the instant factory site") and 115 m2 (hereinafter referred to as "the instant rice site").

나. 김○○은 2003. 6. 24. 원고를 상대로 이 사건 공장용지에 관한 소유권이전등기말소등기절차의 이행을 구하는 소를 제기하였고(○○법원 ○○지원 20○○가합○○○○),위 소송의 항소심[○○법원 20○○나○○○○(본소)ᆞ20○○나○○○○(반소)]에서 원고가 김○○에게 22억 5,000만 원을 지급함과 동시에 김○○이 원고에게 이 사건 공장용지 및 이 사건 논을 인도하기로 하는 등의 내용으로 조정(이하 '이 사건 조정'이라 한다)이 성립하였다. 원고는 2007. 11. 9. 김○○에게 위 조정에 따른 22억 5,000만 원(이하 '이 사건 조정금'이라 한다)을 지급하였다.

C. From 2010 to 2011, the Plaintiff transferred ○○○○○ 533 square meters, 000 square meters, 000 square meters, 840 square meters, 000 square meters, 53 square meters, 000 square meters, 1,949 square meters, 000 square meters, 704 square meters, 000, 099 square meters, 000 square meters, 849 square meters, and 849 square meters of land in the instant case (hereinafter collectively referred to as “each of the instant land”), respectively, to the Korea Land and Housing Corporation by reason of “acquisition of public land.”

라. 원고는 이 사건 각 토지의 취득시기를 1986. 11. 22.로 하여 10년 이상 장기보유특별공제율 30% 및 「공익사업을 위한 토지 등의 취득 및 보상에 관한 법률」(이하 '토지보상법'이라 한다)이 적용되는 공익사업에 필요한 토지를 그 공익사업의 시행자에게 양도함으로써 발생하는 소득에 대한 양도소득세액 감면을 적용하여 2010년 귀속 양도소득세 1,445,356,692원, 2011년 귀속 양도소득세 1,463,030,556원을 각각 신고ᆞ납부하였다.

마. 피고는 원고의 이 사건 각 토지 취득일을 이 사건 조정금 지급일인 2007. 11. 9.로 보아 3년 이상 4년 미만 장기보유 특별공제율 10%를 적용하고 및 '공공용지의 협의 취득'에 따른 양도소득세액 감면을 부인하여, 2015. 11. 4. 원고에게 2010년 귀속 양도소득세 803,910,570원(신고불성실 가산세 및 납부불성실 가산세 포함) 및 2011년 귀속 양도소득세 688,919,090원(신고불성실 가산세 및 납부불성실 가산세 포함)을 각각 경정ᆞ고지하였다(이하 '이 사건 각 처분'이라 한다).

[Grounds for Recognition] Facts without dispute, Gap evidence 1 through 9, Eul evidence 1 and 4 (including the relevant branch numbers), the purport of the whole pleadings

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

A. Determination on the acquisition time of each land of this case

1) According to Article 95(1), main sentence of Article 95(2), Article 95(4), and Article 94(1)1 of the former Income Tax Act (amended by Act No. 11146, Jan. 1, 2012; hereinafter the same), “special deduction for long-term possession” means the amount calculated by multiplying the gains from transfer of the relevant assets by the deduction rate for the gains from transfer of the relevant assets for at least three years (which is the date of acquisition of the relevant assets). The deduction rate for cases where the period of possession is at least three years but less than four years, and the deduction rate for cases where the period of possession is at least ten years is 10%. Furthermore, according to Article 77(1)3 of the former Restriction of Special Taxation Act (amended by Act No. 11614, Jan. 1, 2013; hereinafter the same), the amount of tax equivalent to the special deduction for long-term possession of the relevant land generated before two years prior to the date of acquisition of the relevant land by consultation with the operator.

2) As long as a registration of ownership transfer has been made on the register of real estate, it shall be presumed that the procedure and cause for the transfer will be justified, and the party asserting the procedure and cause for the transfer shall be liable to prove the fact (see, e.g., Supreme Court Decisions 2002Da46256, Feb. 28, 2003; 2007Da91756, Mar. 27, 2008). Therefore, as long as each of the instant lands was completed on the grounds of "sale on Nov. 22, 1986", it is presumed that the Plaintiff purchased each of the instant land from Kim○○, Nov. 22, 1986, and the Plaintiff bears the burden of proof as to each of the instant lands in principle, since the registration of ownership transfer was completed for the purpose of securing a claim for the ownership, the Plaintiff bears the burden of proof in terms of the tax authority.

3) However, in light of the following circumstances, the facts acknowledged earlier, Gap evidence Nos. 9 through 13, and Eul evidence Nos. 2 (including the pertinent branch numbers), and the following circumstances, it is insufficient to recognize that the registration of ownership transfer was completed in the plaintiff’s name for the purpose of securing the claim against the plaintiff Kim ○ on November 22, 1986 on each of the land of this case solely on the basis of the descriptions Nos. 6, 7, Eul evidence No. 3, and the circumstances alleged by the defendant. Thus, the time when the plaintiff acquired each of the land of this case from Kim ○○ shall be Nov. 22, 1986.

① There is no evidence to deem that the Plaintiff and Kim○○○, who was the former owner of each of the instant lands, prepared a written contract establishing security for transfer of each of the instant lands.

② On October 22, 1986, the Plaintiff had already completed the registration of the provisional right to claim ownership transfer with respect to each of the instant lands, thereby securing the security for the loan claim against Kim ○○. Nevertheless, it is difficult for the Plaintiff to find the reasons for completing the registration of ownership transfer with respect to each of the instant lands for the purpose of securing the ownership transfer for the purpose of securing the ownership by paying considerable expenses

③ Although Kim○ paid the aggregate land tax in 197, 199, and 2002 and the property tax in 1995, the Plaintiff appears to have paid all other taxes on each of the instant lands.

④ As to each of the instant lands, ○○○ Co., Ltd., a representative director, who works for the Plaintiff, established the right to collateral security of KRW 600 million on August 22, 1992, KRW 200 million on April 1, 1993, KRW 600 million on September 9, 1994, and KRW 1.8 billion on May 7, 1997, and was granted loans under the name of ○○○ Co., Ltd..., Ltd..., which the Plaintiff was not a mortgagee of the instant land at the time, appears to have been unable to provide each of the instant lands as security of a considerable amount of debt, and in view of the relationship with Kim○○, it is difficult to view that Kim○ offered his property as security for the Plaintiff.

⑤ According to Article 45(1) of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 14467 of Dec. 31, 1994), a person who establishes a transfer security right has expressed his/her intent to transfer the relevant assets to secure the repayment of obligations between the parties to a business which is subject to the establishment of a foreign corporation, and there is a declaration of intent that the debtor will use the relevant assets for its original purpose, and there is an agreement on the principal, interest rate, repayment period, repayment method, etc., and if a report is filed with the head of the competent tax office along with the final return on tax base, the transfer shall not be deemed to have been made. However, on November 22, 1986, Kim ○ did not take such measures even if he/she

(6) According to Article 4(1) of the Provisional Registration Security Act, the liquidation amount of the real estate transferred for security is the amount obtained by deducting the amount of claims from the real estate value at the time of notification of the liquidation. However, the amount calculated by deducting the amount of claims of the Plaintiff from the standard market value at the time of adjustment of the factory site in this case exceeds 4 billion won and is set at the market price. The adjustment amount in this case does not exceed 2.25 billion won, and thus, it is difficult to view the adjustment amount in this case as the liquidation amount.

(3) Furthermore, Article 98 of the former Income Tax Act (amended by Act No. 10408, Dec. 27, 2010) and Article 162 (1) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22580, Dec. 30, 2010) shall apply to the transfer income tax for 2010. The former part of Article 98 of the Income Tax Act and Article 162 (1) 2 of the Enforcement Decree of the Income Tax Act shall apply to the transfer income tax for 2010. The time of acquisition of the land of this case shall be the same as the provisions applicable to the transfer income tax for 2010.30, 206, 300, 406, 196, 196, 196, 206, 300, 196, 306, 406, 196, 165, 2016, etc.

5) Therefore, each of the instant dispositions on different premise is unlawful.

B. Determination on the acquisition value of the instant land

1) The defendant's assertion

Even if November 22, 1986 was the time of acquisition of each of the instant lands, the Plaintiff cannot verify the actual transaction price at the time of acquiring each of the instant lands, and thus, the acquisition price of each of the instant lands ought to be determined at the conversion price. Accordingly, the lawful tax amount is calculated accordingly, in the case of capital gains tax reverted in 2010, KRW 467,191,493, and in the case of capital gains tax reverted in 2011, KRW 68,091,409 (= KRW 20,310,917 + KRW 47,780,492). Accordingly, the portion within the scope of each of the instant justifiable tax amounts is lawful.

2) In calculating gains on transfer, the actual transaction price, which is the basis for the calculation of gains on transfer, is not a general market price that reflects the objective exchange value, but an actual amount as the price for transaction itself or at the time of transaction (see, e.g., Supreme Court Decision 2009Du19465, Feb. 10, 201; Supreme Court Decision 201Du24286, Oct. 15, 2015). As seen earlier, the Plaintiff and Kim ○, as well, and Kim ○, substitute for the land for the land in this case and the purchase price for the discussion in this case, are KRW 259,227,086, which is the total amount of loans until March 16, 1987 for the Plaintiff Kim○, and thus, the actual transaction price of each of the land in this case is the amount divided by the area of each of the land in this case.

3) 원고는 2010년 및 2011년 귀속 각 양도소득세를 신고ᆞ납부하면서 이 사건 조정 당시 김○○이 차용금으로 인정한 161,410,876원을 이 사건 각 토지의 면적별로 안분하여 이 사건 각 토지의 실지거래가액을 산정하였다. 그런데 위 259,227,086원을 이 사건 각 토지의 면적별로 안분한 금액을 이 사건 각 토지의 실지거래가액으로 하여 계산한 양도차익은 원고가 신고한 양도차익보다 작으므로, 결국 원고가 추가로 납부하여야 할 2010년 및 2011년 귀속 각 양도소득세는 존재하지 않는다. 피고의 주장은 이유 없다.

C. Sub-decision

Therefore, each of the dispositions of this case should be revoked as it is illegal.

3. Conclusion

The plaintiff's claim of this case is justified, and all of them are accepted, and the costs of lawsuit are assessed against the losing defendant. It is so decided as per Disposition.