Seoul Administrative Court 2010Gudan15035 ( November 17, 2010)

Seocho 2010west0203 (2010.05.04)

The money paid at the time of acquisition of a tenement house shall not be included in the necessary expenses for the apartment house.

Money paid at the time of the acquisition of a tenement house shall be included in the necessary expenses of the apartment, which is a separate real estate, aside from the fact that it is the necessary expenses of the tenement house.

2010Nu4554 Revocation of Disposition of Imposing capital gains tax

XX Kim

O Head of tax office

Seoul Administrative Court Decision 2010Gudan15035 decided November 17, 2010

June 9, 2011

July 21, 201

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 45,310,700 against the Plaintiff on June 1, 2009 shall be revoked.

1. Details of the disposition;

A. On September 10, 2008, the Plaintiff acquired the instant apartment from the OO to KRW 376,780,000,00 from AAAdong 844 AAaly operated 704, 1005 (hereinafter “instant apartment”). On November 7, 2008, the Plaintiff transferred the instant apartment to both countries at KRW 446,780,000.

B. Upon filing a voluntary report of capital gains tax around December 2008, the Plaintiff reported the acquisition value of the instant apartment to KRW 473,658,598,00,000, which is the sum of KRW 90,000,000,000, and the Defendant did not recognize the premium of KRW 90,000,000 as the acquisition value of the instant real estate on June 1, 2009, and did not recognize the premium of KRW 45,310,70,000 as the acquisition value of the instant real estate, and imposed and notified the instant disposition.

[Reasons for Recognition] Unsatisfy, Gap evidence 5 to 7, Gap evidence 8-1 and 2

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) The plaintiff's assertion

On June 1, 2005, the Plaintiff purchased BB-Gu BB-dong 915-4 BB-dong 915-4 (hereinafter “the instant tenement house”) and completed the registration of ownership transfer on June 7, 2005. At the time, Yangcheon-gu Office purchased the said apartment house for the purpose of incorporating the said apartment house site into a public parking lot construction site, and granted its owner the special right to sell the apartment house constructed by Seoul Metropolitan Government.

In order to acquire a special right to purchase apartment houses, the Plaintiff purchased only the special right to purchase from 5,00,000,000, which is a non-seller of the apartment house in this case, and agreed that the seller shall have the right to purchase the subsequent compensation, and in fact, the compensation was paid to the seller as is.

Therefore, in light of the principle of substantial taxation declared by Article 14 of the Framework Act on National Taxes, the Plaintiff is not to acquire the instant apartment house in substance, but to acquire only the special right to sell the instant apartment, and the cost of 95,000,000 won required therefor shall be included in the necessary expenses of the instant apartment, not the instant apartment house, and the dispositions of the instant apartment on a different premise are unlawful.

(2) The defendant's assertion

The plaintiff's assertion that the plaintiff acquired only the special right to purchase the apartment of this case is inconsistent with the plaintiff's assertion that the plaintiff became the owner of the apartment of this case in the form of acquiring the special right to purchase the apartment of this case, and the plaintiff shall not be recognized in light of all the circumstances, including the fact that the plaintiff, after completing the registration of ownership transfer on June 7, 2005 with respect to the apartment of this case, he owned the apartment of this case for not less than one year until he transferred the apartment of this case to Yangcheon-gu Seoul Metropolitan Government on August 30, 206, and the plaintiff reported transfer income tax by calculating transfer income tax from the sale of the apartment of this case at the publicly notified price on October 31, 206.

Even if the Plaintiff’s assertion is acknowledged, the Plaintiff’s assertion is objectively contradictory to the imposition of capital gains tax of the apartment of this case, even though the Plaintiff exercised all ownership, such as the acquisition and sale of the apartment of this case, and the occurrence of the right to sell the apartment of this case, and fulfilled his duty to report capital gains tax. This assertion by the Plaintiff

(b) Related statutes;

(c) Fact of recognition;

(1) Around February 2005, the head of Yangcheon-gu Office requested the head of the Dong office having jurisdiction over the Dong office to recommend the site subject to the installation of urban planning facilities (parking lot), and the head of the Dong office having jurisdiction over the location of the instant apartment house was recommended as the site subject to the location of the instant apartment house on May 18,

(2) ParkCC, a real estate broker, knew of the fact that the instant apartment house was expropriated as a site for a parking lot, as well as the instant apartment house purchased by the Plaintiff, and mediated the transaction of special right to purchase (right to purchase), Nos. 206, 208, 209, 306, 307, and 308, which are other housing units in the instant apartment house, as well as other housing units in the instant apartment house.

(3) The plaintiff was introduced by Egypt, Egyptian, a Egyptian residing in the OB, with the introduction of Egyptian, and it was possible for EB to acquire the right to move into the O-B apartment site when purchasing the instant apartment house. The plaintiff deposited Egyptian with Egyptian in KRW 95 million to Egyptian.

(4) On June 1, 2005, the Plaintiff entered into a sales contract for the instant multi-family housing with the JungB. The sales contract includes the seller's "fixedBB", "Seoul Yangcheon-gu (33-gu occupancy right) where real estate is located", and "1. In the special agreement, this contract is the sale of the right to occupy the special apartment unit in △△ Construction, and the compensation (land and buildings) generated after the rent has the right of the seller and the right of the buyer has the right to move in. 2. The tenant's deposit and management are responsible for the seller."

(5) On June 7, 2005, the Plaintiff completed the registration of ownership transfer for the instant tenement on the grounds of sale from KimE on the grounds of June 2, 2005, and there was no fact that the Plaintiff directly delivered KimE, the nominal owner of the instant tenement, and in fact, JungB and ParkCC implemented the said registration procedure.

(6) On October 7, 2005, the head of Yangcheon-gu Office established a plan for urban planning facilities (parking lot) with respect to the location of the instant tenement on January 26, 2006, and decided to authorize the said plan on January 26, 2006. On August 25, 2006, a sales contract for the instant tenement was concluded between the Plaintiff and the head of Yangcheon-gu Office with respect to the instant tenement at KRW 105,66,660, and on August 30, 2006, the registration of ownership transfer was completed in the name of Yangcheon-gu Seoul Metropolitan Government.

(7) 원고는 2006. 9. 7. 양천구청장으로부터 이 사건 연립주택에 대한 보상금 105,666,600원을 원고가 개설한 우리은행 통장(계화번호 1002-432-XXXXXX, 우리은행 양천구청지점, 계좌개설일 2006. 8. 24,)으로 지급받아 위 통장을 정BB에게 건네주었고, 위 금원은 2006. 9. 8. 출금되었다.

(8) In relation to the transfer of the instant apartment house, the Plaintiff reported the transfer income tax for the year 2006 with the transfer value and acquisition value of KRW 36,000,000, respectively, and entered into a sales contract with the OO corporation on July 8, 2008 with respect to the instant apartment.

(9) The Plaintiff was subject to the Seoul Southern District Public Prosecutor’s Office 2007 type No. 52195 in the case of violating the Act on the Registration of Real Estate under Actual Titleholder’s Name, and the said decision states that “The suspects including the Plaintiff have acquired the instant apartment house through ParkCC but did not have been entrusted with the title. If the said BB-affiliated site was expropriated in the parking lot site, the said B-B-affiliated site was known to the owners and suspects that they would be entitled to compensation and a right to sell the said site, and the Defendant agreed to acquire compensation in return, and the Defendant purchased the said BB-affiliated for the purpose of acquiring the right to sell the said site. Therefore, it is not recognized that ParkCC held the title trust to the suspects.”

[Ground of recognition] Facts without dispute, Gap evidence 1 through 7, Gap evidence 9 through 13, Eul evidence 1 and 2, the purport of the whole pleadings

D. Determination

(1) Organization of issues

According to the above facts, the plaintiff acquired the apartment house of this case on the ground that he can acquire the special right to purchase the apartment house of this case located in the OB if he purchases the apartment house of this case with the introduction of JungB, which is a real estate broker. The plaintiff acquired the special right to purchase the apartment of this case as the owner of the apartment house of this case, and entered into a sales contract with the OB with respect to the apartment of this case by acquiring the special right to purchase the apartment of this case as the owner of the apartment house of this case, and the plaintiff paid 105,66,60 won compensation for the apartment house of this case

However, as seen earlier, in light of the fact that the Plaintiff completed the registration of ownership transfer on the instant apartment house, owned it for more than one year, received compensation from the head of Yangcheon-gu Office in the name of the Plaintiff, and completed the registration of transfer income tax on the instant apartment house in the name of the Plaintiff, the Plaintiff’s assertion ultimately constitutes the assertion that the Plaintiff denied the legal form of acquiring the ownership of the instant apartment house, which is the legal form the Plaintiff’s own choice, by asserting the principle of substantial taxation, and only acquired the special right to purchase the instant apartment house, which is the legal form that the Plaintiff thought to be its real owner, and thus,

(2) Relevant legal principles

(A) Where a corporation or an individual intends to acquire real estate owned by another corporation, the legal form of transaction can be divided into two ways: (a) the method of acquiring the relevant real estate directly by sale and purchase and the method of acquiring the stocks that can acquire control over the corporation itself; (b) the issue of which method is whether to take place to acquire the real estate is a matter of choice by itself, taking into account the efficiency of the purpose and the degree of bearing the relevant expenses, such as taxes, etc.; and (c) if a corporation establishes a legal relationship for acquiring the real estate by selecting a specific method, the contents and scope of taxes shall be individually determined according to the legal relationship; and (d) the ultimate purpose of mutually different transactions is to acquire the real estate, regardless of the legal form of the difference, it cannot be deemed that the substance is identical or that the acquisition of the stocks of another company is treated as favorable to it; and (e) if a corporation acquires the stocks of another company by concluding a contract for transfer and acquisition of management rights with another company, the legal form of the transaction and the actual amount of the stocks shall be deemed as the acquisition of another company, and thus, it shall be excluded.

(B) In a case where: (a) the tax authority deemed Company A as the actual debtor of the bonds and excluded the interest paid therefrom from deductible expenses; and (b) in a case where Company B actually led the issuance of the bonds as a result of the complete process of the issuance of the bonds; (c) the offering of bonds requires a resolution of the board of directors (Article 469 of the Commercial Act); (d) the issuance of bonds is premised on the issuance of the bonds (Article 478 of the Commercial Act); and (e) the assembly of bondholders requires certain procedural requirements in addition to the expression of simple monetary liability burden (Article 491 of the same Act), and the issuance of bonds is expected to take account of the legal status of the debtor of the bonds and the amount equivalent to the interest paid therefrom as the actual debtor of the bonds; and (e) the issuance of bonds is expected to take place in the transaction system in the form of the bonds; (b) the relationship with Company A as the actual owner of the bonds and the actual owner of the bonds is not subject to the application of the former Corporate Tax Act (amended by Act No. 29819 of the Framework Act).

(3) Determination

In light of the above legal principles, although the purpose of acquiring the apartment house of this case is to acquire the special right to purchase the apartment house of this case, the plaintiff completed the registration of ownership transfer with respect to the apartment house of this case, held it for more than one year, and denied the legal form of acquiring the apartment house of this case, which has completed the registration of ownership transfer with respect to the apartment house of this case, and completed the registration of ownership transfer with respect to the apartment house of this case under the name of the plaintiff, and the acquisition of the apartment house of this case by the principle of substantial taxation

In other words, in this case, the Plaintiff’s assertion that the substance over form principle constitutes “the case where a taxpayer claims the application of the substance over form principle and imposes tax on the premise of a transaction different from the legal form that the taxpayer takes on his own,” and that the Plaintiff denies the legal form of acquiring the ownership of the instant apartment house, which is a legal form that the Plaintiff voluntarily takes on his own, by asserting the substance over form principle, and that the Plaintiff is entitled to acquire the special right to sell the instant apartment house, and the Plaintiff’s assertion that the acquisition of the right to sell the instant apartment, which is a change in legal composition,

Therefore, the money paid by the Plaintiff at the time of the acquisition of the instant tenement house, aside from the fact that the necessary expenses for the instant tenement house are the necessary expenses, cannot be included in the necessary expenses for the instant apartment, a separate real estate.

(4) The theory of lawsuit

Therefore, the disposition of this case that was not included in the necessary expenses of the apartment of this case is legitimate. The plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.