[Case Number] High Court Decision 2014No1281 ( October 16, 2014)

[C] Acquisition [Types of Determination]

[Summary of the Decision-Appellant] Even if the ownership of the pertinent real estate was not transferred in the name of the claimant, the remaining payment date of the said real estate appears as July 19, 2013, and the fact that the sales contract was cancelled within 60 days from the acquisition date of the key real estate was reported to the disposal agency on the grounds of sale from 000, and the fact that the sales contract was canceled within 60 days from the acquisition date of the key real estate has

[Related Acts] Article 20 of the Enforcement Decree of the Local Tax Act

The appeal is dismissed.

1. Summary of disposition;

A. On July 19, 2013, the claimant acquired and sold an OO (hereinafter referred to as “a disputing apartment”) and filed a report on OOO won calculated by applying the reduction rate (50/100) stipulated in Article 40-2(2) of the Restriction of Special Local Taxation Act (Amended by Act No. 11999, Aug. 6, 2013; hereinafter the same) to the disposal agency as the tax base on July 26, 2013.

B. On October 10, 2013, the agency confirmed the fact that the claimant has failed to pay the acquisition tax by the due date, and issued a notice of non-payment of the OOO (including additional taxes), the claimant was released from the sale of the apartment at issue as of August 9, 2013, and filed a request for correction with the agency on July 16, 2014, and the agency rejected the request on July 18, 2014.

C. The claimant appealed and filed an appeal on July 24, 2014.

2. Opinions of the claimant and disposition agency;

A. The claimant's assertion

Although voluntary declaration of acquisition tax was filed on July 26, 2013 on the key apartment, it was unfair to refuse a claimant's request for correction of acquisition tax on August 9, 2013 because it did not meet the formal requirements for acquisition of ownership, such as registration, and substantial requirements such as payment of purchase price, since the contract was rescinded by agreement between the parties to the transaction on August 9, 2013 and the certificate was issued on September 27, 2013 and the cancellation of the contract was requested on the same day.

(b) Opinions of disposition agencies;

A claimant is confirmed through a sales contract and a real estate transaction contract completion certificate, etc. since the fact that he/she entered into a real estate sales contract on July 19, 2013 with the balance payment date of the purchase price in order to acquire the at issue apartment is confirmed through a sales contract and a real estate transaction contract completion certificate, etc. Thus, the at issue apartment is deemed to have been actually acquired on July 19, 2013 and the liability for tax payment has been established. If a claimant intends to be exempted from liability for tax payment of acquisition tax, etc., he/she must prove within 60 days from the date of acquisition by means of a composition, recognition protocol, notarial deed, etc.,

3. Hearing and determination

(a) Points in dispute;

The propriety of a disposition rejecting a request for correction, deeming that the termination of a contract is not evidenced by a notarial deed, etc. within 60 days from the date of acquisition

(b) Relevant Acts and subordinate statutes: To enter in the attached Form;

C. Facts and determination

(1) According to the review materials submitted by the claimant and the agency, the following facts are confirmed:

(A) On July 19, 2013, the claimant entered into a sales contract with the OO to acquire a key apartment on July 19, 2013 with the date of the remainder payment. On July 26, 2013, the claimant was issued a certificate of completion of the contract for real estate transactions by submitting the relevant contract to the disposition agency.

(B) On July 26, 2013, the claimant filed a report on the acquisition price of the disputed apartment as the tax base and the acquisition price calculated by applying the reduction rate (50/100) under Article 40-2(2) of the Restriction of Special Local Taxation Act to the disposal agency.

(C) On October 10, 2013, when the applicant did not pay the acquisition tax reported by the claimant within the due date, the agency issued a notice of non-payment of the OOO capital, including this acquisition tax, to the applicant.

(D) On July 16, 2014, the claimant presented a written contract for cancellation of real estate transaction for the key apartment as set out in August 9, 2013, and a written confirmation of cancellation of a real estate transaction contract as set out in September 27, 2013, and filed an application for rectification with the disposition authority on the purport that the sales contract is rescinded and the acquisition tax is not liable. The disposition authority rejected it on July 18, 2014.

(2) In the case of onerous succession and acquisition that does not fall under any of Article 10(5)1 through 4 of the Enforcement Decree of the Local Tax Act, a taxable object shall be deemed to have been acquired on the date of the balance payment under the contract (where the balance payment date is not specified in the contract, referring to the date on which 60 days have passed from the contract date), but it shall not be deemed that the contract cancellation is acquired if it is proved by a composition, recognition protocol, notarial deed, etc. within 60 days from the date of acquisition without registering or registering the relevant acquired object.

(3) We examine the above facts and relevant laws and regulations comprehensively.

(A) On July 19, 2013, an appellant entered into a real estate sales contract to acquire a key apartment on the same day, and the same sales contract is to pay the down payment and succeed to the loan. Thus, an appellant shall be deemed to have acquired an apartment at issue on the date of the sales contract for the at issue apartment pursuant to Article 20(2)2 of the Enforcement Decree of the Local Tax Act. Although an appellant presents a real estate sale cancellation contract as of August 9, 2013 and a certificate of cancellation, etc. of the real estate transaction contract as of September 27, 2013, the real estate sale cancellation contract prepared between the parties shall be deemed to be an authentic deed, etc., and even if the certificate of cancellation, etc. of the real estate transaction contract submitted by the claimant is written on September 27, 2013, it is difficult to deem that the date of termination falls under the case where the contract is proved within 60 days from the date of acquisition

(B) Therefore, it is deemed that the disposition authority did not err in rejecting the claimant’s request for correction.

4. Conclusion

This case shall be decided as ordered in accordance with Article 123(4) of the Framework Act on Local Taxes and Articles 81 and 65(1)2 of the Framework Act on National Taxes, because the petition for adjudication is groundless as a result of the review.