early 208west2534 ( December 31, 2009)

Whether the cancellation cost of provisional registration can be considered as necessary expenses

The amount disbursed to cancel a separate pre-sale, provisional registration, etc. prior to the act of transfer is not directly related to the act of transfer, but not to be necessary expenses, and it is not a deduction from the total amount of income arising from the act of transfer or a disposition of the nature as necessary expenses

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

1.Gla ○○

2. Gandong △△

Head of the Do Tax Office

1. On December 3, 2007, the Defendant’s imposition of capital gains tax of KRW 165,421,100 for the transfer income tax of KRW 165,421,100 for the year 2006 and the same day against Plaintiff KimB shall be revoked, respectively.

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

It is the same as the disposition.

1. Circumstances of dispositions;

A. On October 11, 1978, KimCC completed the registration of transfer of ownership with respect to each of 1/6 shares of 633-8 square meters of 633-2 large 5625 square meters and 633-4 large 633-5 large 863 square meters and 633-6 large 687 square meters and 633-7 large 1542 square meters and 633-8 large 2302 square meters of the same 633-7 large 1542 square meters (hereinafter referred to as the “instant land”).

B. After that, as the KimCC died on October 4, 2004, Plaintiff KimA, Nonparty KimDD, and KimE respectively were 2/54 shares, and Plaintiff KimB jointly inherited 1/6 shares in each of the instant land from among the instant land, and completed the registration of ownership transfer on December 23, 2004 according to each share ratio.

C. However, on June 30, 2005, 00 ○○-si, where the instant land is located, the area was designated as an area where the gains on transfer were calculated based on the actual transaction amount under Article 96(1)7 of the former Income Tax Act (amended by Act No. 8144, Dec. 30, 2006; hereinafter the same) (hereinafter referred to as “designated area”).

D. After that, as the instant land was included in the site of ○2 District Housing Site Development Project (Public Notice No. 2004-365 of the Ministry of Construction and Transportation on December 3, 2004), which is a public works project implemented under the Act on the Acquisition of Land, etc. for Public Works and the Compensation Therefor, the Plaintiffs transferred their respective shares (Plaintiff KimA2/54, Plaintiff KimB3/54) out of the instant land to 1,041,067,590 won and 1,561,609,130 won, and received each of them on August 1, 2008 (hereinafter “transfer of this case”).

E. On September 29, 2006, the Plaintiffs calculated gains from the transfer of this case as the actual transaction price and paid the Defendant KRW 167,314,834 as well as KRW 252,231,489 as the income tax base on capital gains by installments over two occasions.

F. On December 3, 2007, the Defendant rendered a disposition of this case that excluded each of the above amounts from necessary expenses and imposed KRW 165,421,100,00 as capital gains tax for the year 2006 on Plaintiff KimB by correcting each of the above amounts among the expenses to be incurred in cancelling the registration of the right to claim transfer of ownership in the name of KimF, which was made with respect to 1/6 shares among the land in this case among the actual transaction value (necessary expenses) on the acquisition of assets reported for calculating the tax base of capital gains, 1.8 billion won (40,000,000 won in the amount to be borne by Plaintiff KimF, and KRW 60,000 in the amount to be borne by Plaintiff KimB, as capital gains tax for the year 206.

[Ground of recognition] Facts without dispute, Gap evidence 1-1-7, Gap evidence 4-1, 2-6-1, 2-2, Gap evidence 1-1, 2-2, Gap evidence 11-1, 12, Eul evidence 1-3 (including provisional number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff KimA, KimDD, KimE, and Plaintiff KimB, among the instant lands, paid KRW 2.8 billion in total after the settlement with KimF, the nominal owner of the provisional registration, and the settlement prior to the filing of the lawsuit, in order to cancel the provisional registration that was established with respect to each of the instant shares among the instant lands, to the Nonparty △△△ Corporation. Accordingly, it is unlawful to exclude the Defendant from the necessary expenses each of the Plaintiffs’ respective shares out of the costs of cancelling the provisional registration ( KRW 40 million, and KRW 600,000,000,000).

(2) Article 85 of the former Restriction of Special Taxation Act (amended by Act No. 8050, Oct. 4, 2006; hereinafter the same applies) (hereinafter the same) provides that where a taxpayer transfers real estate within an area to a public project operator under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor or other Acts, the transfer price and the acquisition price shall be calculated based on the standard market price at the time of calculating the transfer income tax base and the tax amount, notwithstanding the provisions of Articles 96(2)7 and 97(1)1(a) of the former Income Tax Act, the transfer price and the acquisition price shall be calculated based on the standard market price at the time of calculating the transfer income tax base and the tax amount. However, in the case of this case, it is reasonable to interpret that the taxpayer does not report the transfer price and the acquisition price as the actual market price under the proviso of Articles 96(2)7 and 97(1)1(a) of the former Income Tax Act to supplement the actual tax base and the tax amount calculated by the standard market price.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On January 31, 1987, KimCC concluded a pre-contract to transfer one-six of the instant lands to KRW 50,000,000 among the instant lands, and completed a provisional registration of the right to request the transfer of ownership in the name of KimF.

(2) On October 4, 2004, in relation to the pre-sale agreement entered into between KimCC and KimF, the Plaintiff KimCC, KimD, and KimE upon the death of October 4, 2004, jointly inherited the 2/54 shares, and 1/6 shares of each of the instant land in proportion to the 3/54 shares, and then on December 14, 2004, the Plaintiff KimB sold 1/6 shares of each of the instant land at KRW 2.8 billion at the time of the death of KimCC, but the 49,00,000,000 won was assessed as KRW 1.3 billion, and the balance was assessed as KRW 1.5 billion, the remainder was offset by the 1.5 billion loan borrowed from Kim F, which was borrowed from KimF before the death, and the remainder was to be paid by the Plaintiff 50,500,000 won to the Plaintiff 5.3 billion won.

(3) On March 24, 2005, the KimF notarized the sales contract on December 14, 2004, and subsequently on June 13, 2006, the KimF agreed with the Plaintiff KimA, KimD, KimDD, KimE, and Plaintiff KimB on June 13, 2006 to cancel the provisional registration under the name of Plaintiff KimF, KimF, KimD, KimE, KimE, and Plaintiff KimB’s loan of KRW 1 billion for KimF, the initial receipt amount of KRW 49,00,000,000 from the present value converted to KimF, and other settlement costs (including interest on loans) KRW 1.3 billion from the present land, the KimF decided to cancel the provisional registration under the name of Plaintiff KimF, Kim DD, KimE, KimE, and KimB succeeded to by Plaintiff KimF.

(4) From among the instant lands on June 21, 2006, the provisional registration set up for one-six shares in the name of Plaintiff KimA, Nonparty KimD, KimD, KimE, and Plaintiff KimB inherited by Plaintiff KimB was cancelled according to the cancellation of KimF, the holder of the right. After that, on July 4, 2006, Plaintiff Kim Young-A, KimD, KimE, KimE, and Plaintiff KimB transferred the shares in each of the instant lands to Nonparty ○○ Corporation, the operator of the public works project on July 4, 2006, KRW 4,684,00,000 (Plaintiff Kim Young-chul, 04,067,590, KRW 1,561,60,60, KRW 590, and KRW 1,561,609,130, respectively, and received the respective proceeds of transfer on August 1, 2008.

(5) The Plaintiff KimA, KimDD, KimE, and Plaintiff KimB transferred the total of KRW 1 billion to the account of KimF on August 4, 2006, Kim HH on four occasions in accordance with the contents of the settlement prior to the said lawsuit, and paid the total of KRW 1.8 billion to KimF on four occasions on September 25, 2006.

(6) On September 28, 2006, KimF filed an application for the conciliation of KRW 2.8 billion against Plaintiff KimAD, KimDD, KimE, and Plaintiff KimB by the Central District Court 2006 money13984, which was to be paid prior to the above lawsuit. On November 6, 2006, Plaintiff AA, KimD, KimD, KimE, and Plaintiff KimB jointly and severally between the parties concerned on November 6, 2006, for their share of the instant land, 2.8 billion won shall be paid from △△ on the day when he receives land compensation for the acquisition on the ground of consultation on June 30, 2006, and if so, 2.8 billion won shall be paid from △△ on the day when he receives land compensation for the remaining share of the instant land from △△ on June 30, 2006.

(7) On the other hand, on March 31, 2005, when Plaintiff KimA, KimDD, KimE, and Plaintiff KimB filed a return on the inheritance tax base and tax amount on the inherited property of the decedent KimCC with the Defendant on December 14, 2004, the Plaintiff evaluated 1/6 shares in the name of KimCC among the land of this case as KRW 500 million under the above sales contract. However, on December 14, 2004, the date of preparation of the above sales contract was notarial on March 24, 2004, and even after the lapse of several months after the contract was made, the Plaintiff did not raise any demand for the performance of the contract without filing the ownership transfer registration, and the above sales contract was made by agreement, 50 million won for the remaining payment of the inheritance tax, and the market price was denied on the ground that it was made by fraudulent agreement, and the Plaintiff’s payment of the inheritance tax and gift tax amount was determined at KRW 400,000,310,3000.

D. Determination

(1) Whether the plaintiffs, etc. who jointly inherited 1/6 shares in the name of KimCC among the land in this case can be deemed as necessary expenses out of KRW 1.8 billion [1.3 billion converted from the purchase price originally received by GimCC to KRW 49,000,000,000, and other reconciliation costs, 500 million] paid to KimF, the title holder of the provisional registration, in order to cancel the provisional registration established on the above shares.

살피건대, 위 인정사실 및 을 제4, 5호증(가지번호 포함)의 각 기재에 의하여 알 수 있는 다음과 같은 사정들 즉,① 위 최초 매매예약 및 2004. 12. 24. 매매계약 체결 등의 당사자가 김FF(김CC의 조카) 및 김CC 혹은 김FF 및 김CC의 상속인들 (원고 김AA, 소외 김DD, 김EE, 원고 김BB)로서 가까운 친척이라는 점,② 위 최초 매매예약 및 2004. 12. 14.자 매매계약서 작성 후 길게는 19년에서 짧게는 1년 넘게 시간이 경과하였음에도 잔금 청산이 이루어지지 아니하였고 그에 기하여 소유권이 전등기가 이루어지지 아니하였음에도 계약 당사자들 사이에 매매계약 이행 최고 등이 전혀 이루어지지 아니하였다는 점,③ 위 최초 매매예약 체결 당시 김FF이 김CC에게 매매예약 대금 50,000,000원 중 49,000,000원을 지급하였음을 입증할 객관적인 자료가 전혀 없고, 더구나 그 현재 가치를 13억 원으로 환산 평가하는 것도 지나쳐 보인다는 점,④ 원고들도 이 사건 소송에 이르러 기존 행태와 달리 이 사건 가등기가 담보가등기라고 자인하는 점,⑤ 김CC의 사망 후 원고 김AA, 소외 김DD, 김EE, 원고 김BB의 상속세 과세표준 및 세액 신고가 있은 다음 피고에 의하여 그 중 이 사건 토지들 중 김CC 명의의 1/6 지분에 관하여 김FF과 원고 김AA, 소외 김DD, 김EE, 원고 김BB 사이에 체결된 위 2004. 12. 14.자 매매계약이 부인되고, 위 지분에 관하여 기준시가에 의한 상속재산가액 산정이 이루어지고, 김CC의 김FF으로부터의 차용금 10억 원에 관하여 미지급 이자에 대한 증여세 과세가 이루어졌음에도 원고 김AA, 소외 김DD, 김EE, 원고 김BB가 불복절차를 밟지 않은 채 상속세 및 증여세를 납부하였다는 점, ⑥ 2006. 6. 21. 이 사건 토지들 중 원고 김AA, 소외 김DD, 김EE, 원고 김BB가 상속한 김CC 명의의 1/6 지분에 관하여 설정되어 있던 가등기가 명의자인 김FF의 해제에 따라 말소되었고, 그 후 원고 김AA, 소외 김DD, 김EE, 원고 김BB는 2006. 7. 4. 공익사업 시행자인 소외 ◇◇공사에게 이 사건 토지들 중 각자의 소유 지분을 합계 4,684,000,000원(원고 김AA 1,041,067,590 원, 원고 김BB 1,561,609,130원)에 양도하고, 같은 해 8. 1. 그 각 양도대금을 수령한 후 위 2006. 6. 13.자 화해조서의 내용에 따라 2006. 8. 4. 김FF의 아들 김GG, 그의 딸 김HH의 계좌로 4회에 걸쳐 합계 10억 원을 송금하여 지급하고, 같은 해 9. 25. 김FF에게 4회에 걸쳐 합계 18억 원을 송금하여 지급하였음에도, 김FF은 2006. 9. 28. 원고 김AA, 소외 김DD, 김EE, 원고 김BB를 상대로 위 화해조서에 기하여 지급 받기로 한 28억 원의 지급을 구하는 조정신청(○○중앙지방법원 2006머13984호)을 다시 하였고, 2006. 11. 6 양 당사자들 사이에 원고 김AA, 소외 김DD, 김EE, 원고 김BB는 연대하여 이 사건 토지들 중 자신들의 지분에 하여 ◇◇공사로부터 2006. 6. 30.자 협의취득을 원인으로 한 토지보상금을 수령하는 날 김FF에게 28억 원을 지급하되, 이를 지체하는 경우에는 미지급 금원에 대하여 지급기일 다음날부터 다 갚을 때까지 연 5%의 비율에 의한 지연손해금을 가산하여 지급하기로 하는 내용의 임의조정이 성립되었다는 점 등에 비추어 보면, 위와 같은 2004. 12. 24자 매매계약, 그리고 2006. 6. 13.자 화해조서 등의 내용과 그에 기하여 이루어진 금전 수수 등은 김 FF이 김CC에게 향후 사업자금 등을 대여하되 이를 담보하기 위하여 이 사건 토지 들 중 김CC 명의의 1/6 지분에 관하여 최초 매매예약을 체결하고, 소유권이전청구권 가등기를 경료하였다가, 김CC이 사망하고 이후 이 사건 토지들이 공익사업 부지로 포함되자 김CC의 상속인들인 원고 김AA, 소외 김DD, 김EE, 원고 김BB와 가등기 권리자인 김FF이 상속세 및 양도소득세 부담을 줄이기 위하여 김CC과 김FF 사이에 설제 매매예약이 있었던 것처럼 통정하여 이루어진 허위의 의사표시에 기한 것으로 봄이 상당하므로, 원고 김AA, 소외 김DD, 김EE, 원고 김BB가 김FF에게 지급한 합계 28억 원 중 김CC이 당초 수령한 매매대금 49,000,000원을 환산한 13억 원, 기타 화해비용 5억 원에 해당하는 18억 원 부분은 이를 필요경비로 인정하기 어렵다고 할 것이다.

Furthermore, even if the above contents of the sales contract as of December 24, 2004 and the settlement protocol as of June 13, 2006 and the receipt and payment of money based thereon do not constitute false representation in conspiracy, a separate sales contract (including trade reservation) prior to the transfer act which is subject to capital gains, and the amount paid to cancel the provisional registration of collateral security (including penalty) shall not be directly related to the transfer act, nor shall it be deducted from the gross income (transfer value) due to the transfer act, or not treated as necessary expenses because it is not a necessary expense under Article 97 of the former Income Tax Act, and thus, it shall not be deducted from the transfer income of this case or treated as necessary expenses (see, e.g., Supreme Court Decision 280 million won, which the plaintiffs paid to Kim F under the settlement protocol as of June 13, 2006, which was concluded with Kim F with the remaining inheritors.

(2) Whether the transfer income tax can be corrected based on the standard market price after reporting and paying the transfer income tax on the land within the designated area that is transferred to the public project operator

According to the main text of Article 96 (2) 7 and Article 97 (1) 1 (a) of the former Income Tax Act, where real estate prescribed by the Presidential Decree among real estate within the designated area is transferred to the relevant business operator under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects or other Acts and subordinate statutes, the transfer margin can be calculated based on the standard market price pursuant to the special provisions of this case. The legislative intent of the special provisions of this case is to facilitate the expropriation of real estate to achieve public interest by reducing taxpayer's tax burden on real estate for public services by recognizing the special provisions of transfer income tax on real estate for public services within the designated area. Therefore, in consideration of the legislative intent of the special provisions of this case, if the special provisions of this case are reported as the actual transaction price and the acquisition price are reported as the actual transaction price under the proviso of Article 96 (2) 7 and Article 97 (1) 1 (a) of the former Income Tax Act, it shall be interpreted that the special provisions of this case provide that the transfer margin should be calculated as the standard market price.

However, according to the above facts, in this case, the plaintiffs reported transfer margin based on the actual transaction price pursuant to the proviso of the special provisions of this case and Article 96 (2) 7 of the former Income Tax Act concerning the transfer of their shares among the land in this case in the designated area to the public project operator of the public interest project. However, since the defendant denied the cost of this case, which is necessary expenses related to the acquisition price among the actual transaction price, and thereby makes a report on transfer margin based on the standard market price, the defendant in this case should calculate transfer margin based on the standard market price in accordance with the proviso of the special provisions of this case and Article 45-2 (1) 1 of the Framework Act on National Taxes, the defendant in this case shall calculate transfer margin

3.In conclusion

Then, the plaintiff's grounds for seeking the cancellation of the disposition of this case are cited.