Seoul Administrative Court-2015-Gu Group-50927 ( September 23, 2016)

Transfer 2014-0144 ( October 27, 2014)

It is reasonable to apply the capital gains tax for the unregistered pre-sale.

It is reasonable to divide the transfer income tax for unregistered pre-sale, and the transfer value shall be the sales price under the sales contract, except in extenuating circumstances.

Article 104 of the former Income Tax Act (Rate of Transfer Income Tax)

2016Nu70132 Revocation of disposition of imposing capital gains tax, etc.

[Plaintiff-appellants-appellants-appellants-appellants-appellants

○ ○

AA Head of the Tax Office

July 12, 2017

August 30, 2017

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

2. The plaintiff's appeal is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 372,624,00 (including additional tax) for the year 2010 against the Plaintiff on January 2, 2014 (the “statement on January 6, 2014”) is revoked.

2. Purport of appeal

A. The plaintiff

The part against the plaintiff in the judgment of the court of first instance shall be revoked. The defendant's disposition of imposition of capital gains tax of KRW 372,624,00 (including additional tax) for the plaintiff on January 2, 2014 shall be revoked in the part of KRW 303,834,97.

B. Defendant

Paragraph (1) shall apply.

1. Quotation of judgment of the first instance;

The reasons for this Court concerning this case are as stated in the reasoning of the judgment of the first instance except for the dismissal or addition of a part of the judgment of the first instance as set forth in paragraph (2) below. Thus, the meaning of the language used in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter the same shall apply to the judgment of the first instance).

2. Parts used or added;

○ The second page of the 13th page "I am," "I am," and "I am, applying 70% of the capital gains tax rate of the assets transferred without registration."

There is no possibility that the balance of the purchase price will be additionally collected from bbb or cC, or from 00 to 300."

○ The following shall be added to the 3rd page 17 below:

“3) In addition, even if the Plaintiff resells the 1/2 shares out of the instant real estate, it is unreasonable to impose capital gains tax on the Plaintiff on the Plaintiff, on the ground that ddd has continuously proceeds regardless of the Plaintiff’s intention, and that dddd has never been for speculative purposes, such as tax avoidance or acquisition of resale through unregistered resale of the said real estate.”

○ Part 19 of the 3rd page “A” is that “A evidence Nos. 1, 15-2, 3, 15-1 through 4, 3 through 5, 7, and 12 are included in each of the statements No. 1, 15-2, 3, 15-1 through 5, 3 through 5, 7, and 12.”

In addition, "204" was added in front of the fourth and fourth 6th 6th , and "the sales contract" was "the sales contract (the sale price of KRW 600 million)", "the preparation of the 12th c," "after which part of the direct purchase price was received from cC in several times, and the transfer was made on May 25, 2010," "the last 4th cc and the second 5th 2th c," and "the purport of ............." is deleted.

○ 5th 2-5th 2nd 5th , “the plaintiff is recognized to be ........”

It is reasonable to deem that the Plaintiff purchased the instant real estate jointly with D and sold it for a certain period of time and sold it, and purchased the instant real estate under the agreement to divide the profits therefrom. Even if the Plaintiff did not specifically determine whether the instant real estate should be transferred in the name of Plaintiff or Ddd and if it would be done under any name at the time of the initial agreement with Dd and D, the Plaintiff remains unregistered even after checking the purchase and resale of the instant real estate on or around September 5, 2008, and completed the registration of ownership transfer in the name of Ee andfff, a trustee of the title on May 25, 2010, in light of the fact that the Plaintiff maintained the unregistered status even after confirming the purchase and resale of the instant real estate on or around September 5, 2008.

○ by striking 5, 18-19, " without completing the registration of ownership transfer".

The ○ 6th parallel 7th to 7th parallel 3th parallel shall be followed as follows.

“2) The Plaintiff asserts that the amount actually recovered is KRW 47 million and that its investment is KRW 360 million. Thus, the transfer margin is merely KRW 87 billion. However, as seen earlier, the contract that only one hundred sells the real estate in KRW 1.2 billion shall also affect the Plaintiff. The Income Tax Act adopts the so-called principle of confirmation of the right to taxable income, deeming that the claim subject to taxation becomes impossible to recover due to the debtor’s bankruptcy, etc., and that there is no possibility of realizing the future income in the sales agreement between the Plaintiff and the witness, and thus, it cannot be imposed income tax on the Plaintiff as taxable income if it is alleged and proved that the claim subject to taxation becomes impossible to collect from the debtor due to the debtor’s insolvency, etc. (see, e.g., Supreme Court Decisions 201Du1536, Oct. 25, 2002; 201Du1536, Oct. 27, 2002).

The 00th parallel 4 to 9th parallel 16 of the 7th parallel shall be followed as follows:

[3] Meanwhile, we examine the Plaintiff’s assertion that the amount of KRW 73 million deposited into Kim 00 on September 29, 2009 should be excluded from the purchase price, with the assertion that the amount of KRW 73 million should be deducted from the transfer price.

In full view of the purport of the arguments in Gap evidence Nos. 4, 5 and Eul evidence Nos. 15 and the purport of the argument as a whole, the Park 00, etc., which sold the real estate of this case in 2004, demanded compensation for the reason that the transfer of ownership of the real estate of this case was delayed and development without their consent incurred losses in capital gains tax, various public charges, etc., and Cccc paid KRW 73 million out of the purchase price of the real estate of this case to a third party designated by hhhh, etc. in the name of e., e., the above 73 million won is acknowledged. However, the above 73 million won is not a dispute over the acquisition of the real estate of this case at the time of the purchase from hhh, etc., or after the acquisition thereof, it does not constitute the expenses directly required for securing ownership, and it is difficult to view the remaining payment of the real estate of this case to be directly paid for the expenses under the former Act No. 12581. 284.2.2.2.207.2.2.1.2078.2.2.207.208.

(d) Whether capital gains tax is excessive;

The purpose of imposing capital gains tax on unregistered transfer assets is to prevent real estate speculation, etc. by a person who acquired assets without registering the acquisition at the time of transfer, and thereby evading various taxes, such as capital gains tax, or pre-sale without paying residual gains from transfer only, etc. Therefore, in the acquisition of the assets at the time of the acquisition of the assets, it is recognized that there is no purpose of speculation, such as tax avoidance, acquisition of resale, etc. through the transfer of assets, and that it is harsh to enforce liability not registered on the acquisition of the assets to the transferor at the time of the transfer.

In the event of transfer income tax is excluded from the assets transferred without registration (see, e.g., Supreme Court Decision 2011Du7557, Dec. 12, 2013). However, in full view of the following: (a) the Plaintiff acquired and sold the instant real estate jointly with dd and the details of the purchase of the instant real estate and the degree of the Plaintiff’s participation in the implementation of the unregistered resale contract; (b) it is difficult to deem that the Plaintiff did not intend to evade taxes or acquire resale; or (c) the Plaintiff did not bear the responsibility for failing to register the acquisition of the instant real estate; and (d) there is no other evidentiary evidence to acknowledge

(e) Calculation of legitimate capital gains tax;

As seen earlier, the transfer value of the instant real estate is KRW 1,200,000, and the acquisition value of the instant real estate is KRW 600,000,000, and the Plaintiff’s share ratio is KRW 1/2. Therefore, on the premise that the tax amount is calculated according to the statement in the evidence No. 2 (Resolution for Determination of Transfer Income Tax) of the Plaintiff, the legitimate tax amount of the transfer income tax on the Plaintiff for the year 2010 shall be KRW 372,624,00 (including additional tax) as stated in the column for the calculation of the amount of justifiable tax for the attached Table. Therefore, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. Since the judgment of the court of first instance differs in part from this conclusion, the defendant's appeal is accepted and the part against the defendant in the judgment of the court of first instance is revoked and the plaintiff's claim corresponding to the cancellation is dismissed as it is without merit, and it is so decided as per Disposition.