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(영문) 청구법인이 이 건 토지를 연부취득하였다고 보아 연부금 지급일에 취득세를 신고ㆍ납부하지 아니한 데 대하여 취득세(무신고가산세)를 부과한 처분의 당부
조세심판원 조세심판 | 2018-04-26 | 조심2018지0059 | 지방
【Request Number】

High Court 2018Do0059 ( October 26, 2018)

[세 목]

acquisition

[Types of Decision]

Revocation

[Summary of Decision]

In light of the fact that the contract in the form of payment of the purchase price in a lump sum for not less than two years is deemed to mean the case where the payment is made in such form, and the issue of the contract is the sales contract according to the opinion of the ○○ market, and the actual payment period is less than two years, even if the issue of the contract is deemed to be the contract as an amendment to the contract, it is difficult to see that the applicant has acquired the land at issue in an annual installments,

[Related Acts]

Article 6 subparagraph 20 of the Local Tax Act;

【Reference Decision】

The early trial 2017da0185 / the early trial 2017da0267/ the early trial 2016da0644

【Determination following Decision】

The early trial 2018do0595/ the early trial 2018do0596/ the early trial 2019Do2092

[주 문]

The imposition of acquisition tax (additional tax without filing) on September 14, 2017 by the OOO to the applicant corporation shall be revoked.

[이 유]

1. Summary of disposition;

A. On June 29, 2012, the applicant entered into a contract to purchase 88,977 square meters of OO land (a provisional lot number, this sub-land) from OO to OO, and on December 29, 2011, the applicant paid the total amount of OO by September 30, 2013 and reported and paid the total amount of OO on October 22, 2013.

B. As a result of conducting a tax investigation into local tax on the applicant corporation, the agency: (a) deemed that the acquisition of this case’s land constitutes the acquisition of annual installments; and (b) imposed and notified an OO on each applicant corporation of acquisition tax (additional tax without filing a return) on each annual installments for which the date of annual installments payment is acquired and which is not reported within the statutory due date of return from the date of acquisition.

C. The applicant filed an appeal on November 2, 2017.

2. Opinions of the requesting corporation and the agency;

(a) argument as the Requested Party;

The disposition agency deemed that the agreement on the payment of the purchase price under the sales contract was for at least two years from the date of the provisional contract (the fourth installment payment date under the sales contract) and the acquisition of the relevant land constitutes an acquisition in annual installments. However, even if the agency concluded the player agreement and paid the player price in full pursuant to the contract, it is merely the reservation of the sales contract that was made before the conclusion of the contract, and it is merely the date of the actual payment of the balance should be deemed the date of acquisition of the land (local tax operation-1076, March 12, 2009). The provisional contract concluded on December 29, 201 by the requesting corporation (hereinafter referred to as "market provisional contract"), which was concluded on December 29, 201, is merely the pre-contract of the sales contract, and the document constitutes an annual installment payment from the sales contract concluded on June 29, 2012 (hereinafter referred to as "final contract"), and thus does not constitute the date of payment of the remainder within three years from the date of the agreement.

Even if the key issue is a sales contract, if the price is paid within two years, it does not constitute an acquisition by annual installments (the same meaning shall be the same as the first instance court's decision 2017Do185, May 31, 2017; the first instance court's decision 2017Do267, July 7, 2017), and the claimant corporation's decision 2 years from the date of the conclusion of the contract (the date of December 29, 201), and it does not constitute an acquisition by annual installments, since the purchase price of the land in this case was paid in full.

(b)Opinion of the Administration;

(1) OO opinions

Article 10 (1) of the Local Tax Act provides that the tax base of acquisition tax shall be the annual installment (referring to an amount actually paid every time, including contract deposits included in the acquisition value; hereafter the same shall apply in this Section) where the acquisition is made by annual installment payments at the time of acquisition, and Article 20 (5) of the Enforcement Decree of the same Act provides that the actual payment date of annual installment payments shall be deemed to have been acquired, and the term "annual installment payments" in subparagraph 1 of Article 7-5 of the General Rules of the Local Tax Act provides that the term "annual installment payments" means that the price which cannot be paid in a lump sum shall be paid in two or more years in installments in the form of an annual installment contract under the sales and purchase contract and shall be paid in two or more years in installments, and the acquisition of the actual amount shall be made in two or more years in the form of an annual installment payment contract, and it shall not be deemed that the actual amount has been paid in two or more years in the form of an annual installment payment contract (see Article 20 (5) of the Local Tax Act).

(2) OO opinions

The claimant corporation asserts that the tax liability for acquisition tax does not occur because the issue is merely the promise of a sales contract, even if the advance payment is made, it is the amount paid on the premise that the contract will be performed later. However, a sales contract is established by mutual agreement between the parties as to the transfer of the property right by a party to the agreement to transfer the property right by the other party and the payment of the price by the purchaser. Even if the provisional contract did not state the remaining payment date and the regular contract was not prepared later, if there is an agreement on the object of the sale and the payment method, which is an important matter of the sales contract at the time of the preparation of the provisional contract, and the object of the sales contract, the purchase and the sale price, etc., are specified and the payment method is specified (see Supreme Court Decision 2005Da39594, Nov. 24, 2006).

Article 6 subparagraph 20 of the Local Tax Act provides that "annual installments" shall be paid in installments in the form of annual installment contract under the sales contract and in a certain amount for at least two years. The acquisition of annual installments in Article 20 (5) of the Enforcement Decree of the same Act shall be deemed acquisition on the annual installment payment date. However, an annual installment contract shall be established at least two years, and the payment period under the sales contract shall be deemed to have been completed at least two years, and the payment of the remainder without amending the annual installment contract shall be deemed to have been made in installments, and it shall be merely a waiver of the benefit of the period during which the payment may be made in installments, and the payment of the remainder without amending the annual installment contract shall be deemed to have been made prior to the execution date (the local tax examination by the person who committed the local tax examination, order of April 28, 2003). Thus, this shall mean the payment

According to the main contract, an OO paid as a provisional contract deposit on December 29, 201 shall be the down payment on June 26, 201, and the OO shall be the down payment on June 26, 2012; the OO shall be the first installment on June 26, 2012; the OO shall be the first installment on December 29, 2012; the OO shall be the third installment on June 29, 2013; the OO shall be the first installment on March 29, 2014; and the date of the key contract ( October 29, 2011) falls under an annual payment contract; even if the period for which the applicant corporation actually paid the price is within two years, the acquisition tax and additional tax on the annual installment shall be deemed to have been acquired, and no one may be found to have committed an act of failing to report and pay the acquisition tax and additional tax on each corporation.

3. Hearing and determination

(a) Points in dispute;

The propriety of the disposition imposing acquisition tax (additional tax on non-return) on the failure to report and pay acquisition tax on the annual payment date, deeming that the applicant corporation acquired this case's land in annual installments.

B. Relevant statutes

(1) The Framework Act on Local Taxes

Article 53 (Additional Tax on Non-Report) (1) Where a taxpayer fails to file a tax base return by the statutory due date of return, an amount equivalent to 20/100 of the amount of tax to be paid by such return (where there is an additional amount equivalent to interest to be paid in addition to an additional tax under this Act and local tax-related Acts, excluding such amount; hereinafter referred to as "amount

(2) Notwithstanding paragraph (1), where a return of the tax base is not filed by the statutory due date of return due to fraudulent or other unlawful acts, an amount equivalent to 40/100 of the amount of tax payable shall be imposed as the

(3) Matters necessary for the calculation of penalty taxes and the imposition of penalty taxes under paragraphs (1) and (2) shall be prescribed by Presidential Decree.

(2) Local Tax Act

Article 6 The definitions of terms used in the acquisition tax shall be as follows:

20. The term "annual installment" means that a price that cannot be fully paid in a lump sum shall be paid in installments in at least two years, in the form of an annual installment contract under a sales and purchase contract.

Article 10 (Tax Base for Special Cases) (1) The tax base for acquisition tax shall be the value at the time of acquisition: Provided, That in cases of acquisition by annual installments, it shall be the annual installment (referring to an amount actually paid once, and including contract deposits included in the acquisition amount; hereafter the same shall apply in this Section).

(5) The tax base of any of the following acquisitions (excluding donation, contribution, other gratuitous acquisition, or acquisition through a transaction under Article 101 (1) of the Income Tax Act or Article 52 (1) of the Corporate Tax Act) shall be the actual price of acquisition and the amount of annual installments, notwithstanding the proviso to paragraph (2) and the latter part of paragraph (3):

1. Acquisition from the State, local governments, or local government associations;

2. Acquisition due to the importation from a foreign country;

3. Acquisition with a certificate of acquisition price as prescribed by Presidential Decree in court rulings or corporate accounting books;

4. Acquisition through the public auction.

5. Acquisition verified pursuant to Article 5 of the Act on Report on Real Estate Transactions, Etc. by submitting a report under Article 3 of the same Act;

(7) The scope of the value, price or annual installment amount which serves as the tax base for acquisition tax under paragraphs (1) through (6), its application and the time of acquisition shall be prescribed by Presidential Decree.

Article 20 (Reporting and Payment of commissioner of Special Metropolitan City) (1) Any person who acquires objects of taxation of acquisition tax shall report and pay the tax calculated by applying the tax rates under Articles 11 through 15 to the tax base to such tax base within 60 days from the date of such acquisition (referring to the date of permission or the date of revocation or reduction of designation of an area subject to permission where the transaction price has been fully paid before obtaining permission for a land transaction contract under Article 11 of the Act on Report on Real Estate Transactions, Etc., in cases of acquisition of land located within the area subject to permission of land transaction contract under Article 10 (1) of the same Act) (referring to the date of revocation or reduction of designation of the area subject to permission in cases of inheritance due to inheritance) (referring to the last

(3) Enforcement Decree of the Local Tax Act

(1) The acquisition price or the amount of annual installments under the subparagraphs of Article 10 (5) of the Act shall be the sum of direct expenses paid or to be paid to the other party to the transaction or a third party in order to acquire the relevant goods prior to the time of acquisition and any of the following indirect expenses: Provided, That where a certain amount is discounted by paying the acquisition price in lump sum, etc., it shall be the discounted amount:

2. An amount equivalent to interest and late payment fees under an installment plan or annual installment contract: Provided, That where a person other than a corporation acquires it, such amount shall be excluded from the acquisition price;

Article 20 (Timing, etc. for Acquisition)

(2) For onerous succession and acquisition, it shall be deemed acquired on the following dates:

1. The balance payment date, in cases of onerous succession and acquisition under any provision of Article 10 (5) 1 through 4 of the Act;

(5) A thing acquired in annual installments (excluding a thing the total acquisition value of which is subject to Article 17 of the Act) shall be deemed acquired on the actual payment date of annual installments.

(4) Restriction of Special Local Taxation Act (amended by Act No. 12175, Jan. 1, 2014)

Article 85-2 (Reduction or Exemption for Local Public Enterprises, etc.) (1) Local tax on a local public corporation established pursuant to the Local Public Enterprises Act (excluding agricultural and fishery products corporations and urban railroad corporations) shall be reduced until December 31, 2013, as follows:

1. Acquisition tax on real estate acquired to use directly for its unique duties shall be reduced by an amount calculated by multiplying 75/100 (where municipal ordinance prescribes a different rate within 75/100, such rate shall apply thereto) of acquisition tax by the proportion of stocks owned by the local government [referring to stocks owned by the local government (including stocks deemed to be invested by the local government pursuant to Article 53 (4) of the Local Public Enterprises Act) of the total number of stocks issued by the local government;

2. Registration license tax on the registration of such corporation shall be reduced by an amount computed by multiplying 75/100 (where municipal ordinance prescribes a different rate within 75/100, such rate shall apply thereto) of registration license tax by the proportion of stocks held by the local

3. Property tax (including an amount imposed pursuant to Article 112 of the Local Tax Act) on real estate used directly for its unique duties as of the tax base date shall be reduced by an amount computed by multiplying 75/100 (where municipal ordinance prescribes a different rate within 75/100, such rate shall apply thereto) of property tax by the proportion of stocks

C. Facts and determination

(1) The following facts are revealed according to the review materials, etc. submitted by the applicant corporation and the disposition agency.

(A) The applicant corporation is a local public enterprise that is established pursuant to the Local Public Enterprises Act on November 28, 1997 and is engaged in the acquisition, development, reserve and supply, lease management, and construction, improvement, supply, lease, management, etc. of housing and general buildings.

(B) The acquisition process of this case by the Requesting Corporation is as follows.

1) On December 29, 2011, an applicant corporation entered into an agreement with OO and ① the subject matter of sale into “OO housing site development project site 88,977 square meters (this parcel of land)”; ② the method of payment of purchase price into OO; ② the method of payment of purchase price shall be 10% of the purchase price; the buyer shall pay the seller an OO0 million won by December 30, 201, and the difference shall be paid until June 30, 2012; the installment shall be 90% of the purchase price; and the installment shall be paid in full by every six months and shall be paid in full by every six months ( September 30, 2013).”

2) On June 29, 2012, when concluding a main contract with the Land Corporation, the claimant corporation changed the timing of use, such as contractual parties, the subject matter of sale, the sales proceeds, etc., to March 31, 2014, and only the method of payment according thereto, as follows:

【The method of paying the purchase-price(s)

(unit: Won)

3) On September 30, 2013, before the date of the balance payment agreement ( March 29, 2014), the applicant corporation reported and paid acquisition tax on September 30, 2013, which is before the date of the main contract for the issue of this issue, and on the acquisition date of the remainder payment, the date and amount

【Date and Amount to be paid

(unit: Won)

(C) On July 17, 2017 through July 25, 2017, the disposition authority imposed and notified an OO of acquisition tax (additional Tax on Non-Filing) on each annual installments by deeming that the applicant corporation acquired this case’s land in annual installments and did not report acquisition tax within the statutory due date of return from the date of annual installments payment as the result of conducting a local tax investigation on the applicant corporation.

【Calculation of Additional Tax on Non-Report

(unit: Won)

(2) The term "annual installments" in Article 6 subparagraph 20 of the Local Tax Act means that a certain amount of annual installments shall not be paid in a lump sum for at least two years under a sales contract after taking into account the facts and relevant statutes. The term "annual installments acquisition" in the same provision means that a certain amount of annual installments shall not be paid in a lump sum for at least two years under a sales contract for real estate, and an actual amount shall be paid in two years or more, and even if a contract was entered into to pay in two years or more at the time of the initial sales contract, it shall not be deemed an acquisition in annual installments. In a case where a sales contract was entered into after the date of the initial sales contract, whether the provisional contract is an athlete agreement or this contract is determined in accordance with the terms and conditions of the provisional contract, and the contract shall be deemed to fall under this contract if the location, area, and timing for payment of the real estate subject to the sale are clearly prescribed, and the agreement shall be deemed to have been concluded again without any specific terms and conditions of the above contract, and the agreement shall be deemed to have been 20164(6).

The key issue contract entered into on December 29, 201, clearly prescribes the location, area, and purchase price of real estate subject to sale; however, in light of the fact that the contract was entered into on September 29, 201, with the agreement to pay in full each six-month unit during the period of payment of the purchase price, the remaining payment period of the land in this case is flexible and it is not confirmed whether the contract was a contract under which the said contract was paid over two years or more. Since then, the contract was entered into on June 29, 2012, the agreement to pay the purchase price by March 29, 2014, stating the payment period in the key issue contract entered into on June 29, 2012, the date on which the applicant corporation completely pays the actual balance ( September 30, 2013) can not be deemed an acquisition of the land in this case by the applicant corporation as annual installments in light of the fact that the date of the contract ( September 29, 2011) appears within two years.

Therefore, it is deemed that the claimant corporation has acquired this case's land in annual installments, and the acquisition tax has been imposed by adding the non-reported additional tax.

4. Conclusion

This case's petition for adjudication is with merit as a result of the review, so it is decided as ordered by Article 96(4) of the Framework Act on Local Taxes and Article 81 and Article 65(1)3 of the Framework Act on National Taxes.

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