[Request Number] Trial Decision 2015 Sueu589 ( May 16, 2016)
[C] Assignment [Type of Decision] Dispact
[Determination]20*****.*.* The summary of the transfer registration of ownership was received in the name of successful bidder due to sale, and Article 162(1)2 of the Enforcement Decree of the Income Tax Act provides that the date of receipt of registration recorded in the register shall be the time of transfer in cases where the registration of transfer was made before the settlement of the price was made, and the applicant transferred the ownership of the at issue apartment in 20*** the successful bidder in 20**** the preliminary return of the capital gains tax in 20** the date of transfer of the at issue apartment in 20** the date of transfer of the apartment in 20*
[Related Acts] Article 98 of the Income Tax Act
The appeal is dismissed.
1. Summary of disposition;
A. The claimant reported the transfer income tax as shown in the table 1 on the transfer of OO(hereinafter referred to as “OO”) to OO(s)(s)(s).
Details of report on transfer income tax claimant's transfer income tax
B. The disposition agency conducted an investigation of capital gains tax on the OO claimant, and corrected and notified the OOO claimant for the transfer income tax for the year 201, which was reduced by the acquisition value of the OO at the time of selling the apartment at issue.
C. The claimant appealed and filed an OO appeal through the OO’s objection.
2. Opinions of the claimant and disposition agency;
A. The claimant's assertion
(1) The claimant entered into a sales contract for the apartment at issue with the successful bidder of the OO and the OOO, received the down payment OOO or the OOO intermediate payments on the contract date, and received the remainder of OOO.
(2) Before receiving the remainder, the OOOO of the compulsory decision on commencement of auction on the OO-related apartment was conducted, and the claimant received the registration of ownership transfer of the OO apartment under the name of the successful bidder at the request of the successful bidder without receiving the remainder.
(3) As the successful bidder who was awarded a successful bid in full pays out the bid price of OO, the registration of transfer of ownership that was received due to the sale was cancelled OO, transfer of ownership was made in the name of the successful bidder due to a compulsory auction.
(4) At the time of acquiring the apartment at issue, the claimant received a loan from the OOO and paid interest on the loan to the OO.
(5) It is reasonable to regard the time of the claimant's transfer of the key apartment as OO where the successful bidder paid the successful bid price because the successful bidder's transfer price is not determined until the successful bidder is awarded the successful bid price. Therefore, the transfer of the key apartment is subject to non-taxation for one household. Therefore, the disposition that the disposition agency considers the time of the transfer of the key apartment as OO on the day when the transfer registration was received due to the initial sale is unreasonable.
(b) Opinions of disposition agencies;
In light of the fact that the date of transfer is the OO at the time of reporting the transfer income tax on the issues apartment, the disposition imposing the transfer income tax is justifiable by deeming the year to which the claimant's transfer of the issues apartment belongs as 201.
3. Hearing and determination
A. Key issue
The legitimacy of the claim claim purporting that the time of transfer of the disputed apartment is not theOO that was originally reported but the OO (the date of full payment of the successful bid price)
B. Relevant statutes
(1) Income Tax Act;
Article 98 (Time of Transfer or Acquisition) In calculating gains on transfer of assets, the time of transfer and the time of transfer shall be the date of liquidation of the price of relevant assets, except in cases prescribed by Presidential Decree, such as cases where the date of liquidation of the price is unclear. In such cases, if the transferee has agreed to bear the amount of capital gains tax and the additional amount of capital gains tax on the transfer of relevant assets, the price of assets shall be excluded.
Article 89 (Non-taxable Capital Gains) (1) No income tax on capital gains (hereinafter referred to as "capital gains tax") shall be levied on the following income:
3. Income generated from transfer of one house for one household prescribed by Presidential Decree (excluding expensive houses the value of which exceeds the standard prescribed by Presidential Decree) and land appurtenant thereto, within the area calculated by multiplying the area of land on which a building is built by the multiple rates prescribed by Presidential Decree by region (hereafter referred to as "land annexed to a house" in this Article);
(2) "Cases prescribed by Presidential Decree, such as where the date on which the price has been settled is unclear" in the former part of Article 98 of the Income Tax Act means any of the following cases:
1. Where the date of the settlement of price is not clear, the date of registration, receipt of registration, or transfer date entered in the register, registry, list, etc.;
2. Where registration of transfer of ownership (including registration and statements of change of name) has been made before the price is settled, the date of receipt of the registration entered in the register, register, list, etc.;
C. Facts and determination
(1) The claimant filed a transfer income tax report as shown in the above Table 1, on the ground that he transferred the controversial apartment to the successful bidder of the OOO by sale.
(2) The disposition agency conducted an investigation of capital gains tax on the OO claimant and denied the OO won (unsale discount amount) among the OOO (sale discount amount) reported as the acquisition value of the apartment at issue, and imposed capital gains tax on the applicant.
(3) According to the register of the real estate register of the key apartment, the major changes in ownership are as follows.
(A) The key apartment that the claimant acquired OO was the OO's decision to commence compulsory auction.
(B) The registration of ownership transfer was received in the name of the successful bidder on the ground of the OO salesOO.
(C) Upon cancellation of the registration of transfer of ownership in the OOO, the registration of transfer of ownership was received in the name of the successful bidder due to a compulsory auction.
(4) The successful bidder at issue apartment was awarded the bid price in full, and the main contents of the OO district court's OOOOOO submitted by the claimant are as follows.
Table 2 OOOOO of the District Court
(5) According to the OO copy of the head of the Tong and the OOO presented by the claimant, the OO has been deposited into the OO as a loan-based loan-based loan-based loan-based loan-based loan-based loan-based loan-based loan-based
(6) There is no dispute between the claimant and the agency that denied the OO Won among the OO members reported as the acquisition value of the disputed apartment.
(7) In full view of the above facts and relevant statutes, the claimant asserts that the time of transfer of the at issue apartment is OO where the successful bidder paid the successful bid price. However, the effect of seizure following the registration of transfer of the auction price is only to restrict the disposal of the real estate against the owner of the real estate in relation to the execution creditor, and it does not prohibit the disposal of the real estate in relation to other third parties. Therefore, even during the auction procedure, the owner of real estate can dispose the secured real estate effectively until the successful bidder acquires the ownership of the secured real estate after full payment of the successful bid price, and as a result, the person who acquired the ownership of the real estate can be an interested party in the auction procedure by proving that he/she acquired the ownership of the secured real estate at the execution court and can be an interested party in the auction procedure, and if surplus after the distribution, disposal of the real estate shall be subject to return as the owner of the real estate (see Supreme Court Decisions 91Nu528, Feb. 11, 192; 2000>
This case shall be decided as ordered in accordance with Articles 81 and 65 (1) 2 of the Framework Act on National Taxes because the petition for adjudication has no merit as a result of the review.