early 2011west0350 ( October 31, 2011)

The apartment was acquired through the division of property, not by payment in kind.

The plaintiff asserted that he acquired apartment as a substitute for the performance of monetary liability, but according to the provisions of the divorce lawsuit conciliation clause, since he acquired apartment as a division of property, the disposition that the defendant considers the time of acquisition of apartment as the time he acquired by the former spouse is legitimate.

2011Gudan10723 Disposition of revocation of imposition of capital gains tax

IsaA

○ Head of tax office

July 6, 201

August 17, 201

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 115,458,330 to the Plaintiff on October 11, 2010 shall be revoked.

1. Details of the disposition;

A. On January 25, 2008, the Plaintiff, the spouse of this case, completed the registration of transfer of ownership under the name of the Plaintiff on June 1, 2009, and on June 23, 2009, transferred the apartment of this case to ParkB on June 23, 2009.

B. When the Plaintiff made a preliminary return on the tax base of transfer income on the transfer of apartment of this case, the Plaintiff newly raised and paid KRW 44,197,200, which was calculated by deeming the acquisition date of apartment of this case as June 1, 2009.

C. As the Plaintiff acquired the instant apartment from division of property, the Defendant issued the instant disposition imposing and notifying the Plaintiff of KRW 115,458,30 of the capital gains tax for the year 2009, which was calculated on July 23, 2004, on the ground that the acquisition time of the instant apartment should be deemed as July 23, 2004, since the Plaintiff acquired it by division of property, the acquisition time of the instant apartment shall be deemed as the date of acquisition by EA, who is the former spouse. The instant disposition was issued to the Plaintiff on October 11, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 3 through 5 (including additional numbers), Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On August 22, 2007, the Plaintiff filed a divorce lawsuit against thisA against the divorce and the judgment ordering the Plaintiff to divide the property, etc. against the Plaintiff. On January 25, 2008, the appellate court of the instant case concluded that the divorce and the Plaintiff shall pay the Plaintiff KRW 2,44,590,163 as the division of property. The instant conciliation had the Plaintiff perform part of the obligation to pay the amount arising from division of property by means of payment in kind. Accordingly, the Plaintiff received the registration of ownership transfer for the instant apartment on June 1, 2009 from thisA as the payment for part of the obligation to pay the above amount. Accordingly, the causes for the Plaintiff acquired the instant apartment are not the division of property, but the payment in substitution for the performance of the monetary obligation to be paid by thisA to the Plaintiff as the division of property, and the instant disposition otherwise reported is unlawful.

(b) Fact of recognition;

(1) On August 22, 2007, the above court rendered a judgment ordering the Plaintiff to pay consolation money of KRW 20,400,000,000 and damages for delay to the Plaintiff for divorce and EA’s division of property between the above parties, and property division of KRW 20,400,000,00, and damages for delay against each of the above amounts, which the Plaintiff filed against EA.

(2) From the appellate court of the instant case (○○ High Court 2007Reu1715) to January 25, 2008, conciliation was concluded between the Plaintiff and thisA. The main contents are as follows.

- Conciliation Clause -

1. As of January 4, 2008, the amount that the Defendant is liable to pay to the Plaintiff shall be determined as KRW 2,187,265,025, deducting KRW 300,000,000, which is the sum of KRW 2,444,590,163, solatium 23,674,862, and support allowance 19,000,000, which is the sum of KRW 2,487,265,025, which the Defendant had paid to the Plaintiff.

Division of property shall be substituted by transferring the ownership of an apartment in attached Form 2, as shown in paragraph (3), and the insufficient part shall be paid in cash.

2. After the completion of conciliation, the Defendant, in consultation with the non-party Han Bank, additionally extended the maximum amount possible as security the apartment house listed in the attached Table 2 (hereinafter referred to as “○○ apartment”) and the real estate list 1 (hereinafter referred to as “○○ Dongdong”) as indicated in the attached Table 2, and paid the Plaintiff the amount obtained by deducting the additional loans from the expenses

3. The Defendant, as a division of property, transfers the ownership of the above ○ apartment to the Plaintiff within 14 days from the date the instant conciliation was completed, and the acquisition tax, registration tax, and expenses therefrom shall be borne by the Plaintiff.

4. As a division of property, the Plaintiff shall be the amount paid by the Defendant with the amount obtained by deducting the amount of debt indicated in the attached Table such as the collateral security debt from the value of the above ○○ apartment (evaluation as KRW 2 billion) transferred by the Defendant (if capital gains tax, gift tax, etc. is imposed on the transfer of the above apartment, this shall be borne by the Defendant

7. The defendant shall pay to the plaintiff the remainder remaining after deducting the repayment amount stated in paragraphs (2) through (6) from the payment amount stated in paragraph (1) by the end of March 2009.

C. Determination

The key issue of this case is whether the Plaintiff acquired the apartment of this case from this AA through division of property, or whether the Plaintiff acquired the apartment of this case through payment in lieu of the payment in cash to the Plaintiff in this case. In accordance with the above conciliation provision, it is determined that the Plaintiff acquired the apartment of this case as division of property for the following reasons.

First, even according to the conciliation clause(1) that the Plaintiff is the basis for the claim for payment in kind, thisA only determines the total amount of the appraised value of the property to be transferred to the Plaintiff as a division of property, but does not impose an obligation on thisA to pay the amount of KRW 2,44,590,163 as a division of property. In other words, the purport of the conciliation clause is to impose an obligation on thisA to pay the balance excluding the amount of repayment under paragraphs 2 through 6, but not immediately impose an obligation to pay the amount under paragraph(1).

Second, Article 3 (3) of the Mediation Clause provides that the ownership of the apartment of this case shall be transferred to the plaintiff as a 'property division', and this provision is a provision that can be executed even without the cooperation of thisA, and the plaintiff also seems to have completed the registration of ownership transfer for the apartment of this case on the ground of the above provision, with the division of property on January 25, 2008 as the ground for registration.

Therefore, the disposition of this case based on the premise that the plaintiff acquired the apartment of this case through division of property is legitimate, and the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.