The transfer of assets as of the balance payment date is not required to exist.

The transfer income tax is not subject to the transfer income tax, which is the income that the transferor gains, but is not subject to the taxation itself, and it is judged that the assets themselves do not have to remain as of the date of settlement of the price.

The contents of the decision shall be the same as attached.

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 2,646,243,00 against the Plaintiff on December 11, 2008 shall be revoked.

1. Details of the disposition;

가. 원고는 대구 @@구 @동 552-2 대 338㎡, 같은 동 552-14 도로 37㎡(이하 위 338㎡ 및 37㎡를 통틀어 '이 사건 토지'라고 한다) 및 이 사건 토지 지상 철근콘크리트 구조 슬래브 지붕 지상 4층의 다가구주택(이하 '이 사건 주택'이라고 한다)을 소유하고 있었다.

B. On June 14, 2005, the Plaintiff agreed to sell only the land of this case to SSSNC Co., Ltd. (hereinafter “SSSF”), a company implementing a reconstruction project, for the purchase price of KRW 4 billion, and received the remainder from the non-party company on December 29, 2005 and received the payment of the purchase price in full. Meanwhile, the instant housing was removed on December 28, 2005, prior to the payment date of the remainder, and the registration of destruction of the building was completed. Accordingly, the Plaintiff reported and paid the transfer margin on the instant land based on the standard market price of the instant land. The Plaintiff reported and paid KRW 15,210,570 for the transfer income tax of KRW 205, which was calculated as above on March 17, 2006.

C. After undergoing a tax investigation with respect to the Plaintiff, the Defendant did not transfer only the instant land, but also the Plaintiff transferred all the instant land and the instant house on its ground. Since the transfer value of the instant land and the instant house exceeds KRW 600 million and the Plaintiff owned three or more houses for one household at the time of the Plaintiff, the said transfer constitutes a transfer of three houses or more for one household, and thus, on December 11, 2008, notified the Plaintiff of KRW 2,646,243,000, which was calculated by applying the actual transaction value and heavy taxation rate to the said transfer (hereinafter “instant disposition”).

D. Meanwhile, the Plaintiff filed an appeal with the Tax Tribunal against the instant disposition, but the Tax Tribunal rendered a decision to dismiss the Plaintiff’s appeal on February 17, 2009.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 14, Eul evidence 1, Eul evidence 2-1 to 9, Eul evidence 7, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) Claim that the subject matter of sale is limited to the instant land

At the time, the non-party company, which seeks to reconstruct a large-scale apartment complex (the same house) on its ground after purchasing approximately 32,000,000 won of the land located in the Daegu Suwon-gu, and intended to purchase only the land of this case in which the instant house was removed from the plaintiff. Therefore, even under Article 1 of the sales contract (Evidence A7) prepared by the plaintiff between the non-party company and the non-party company, the sale real estate is included in the sale and purchase price as well as the land of this case. Furthermore, in light of the above circumstances, the plaintiff removed the instant house and completed the registration of destruction of the building, and received the balance payment from the non-party company after completing the registration of destruction of the building. However, the sale price up to KRW 4,00,000 is limited to the land of this case as the object of the instant sales contract. However, since the sale price to the land of this case was due to the location of the land of this case and thus, it was unlawful for the plaintiff to sell only the land of this case to the non-party company.

(2) The allegation that the instant housing cannot be subject to taxation because it was destroyed at the time of transfer.

Therefore, even if the instant housing was included in the subject matter of a sales contract concluded between the Plaintiff and Nonparty Company, the instant housing cannot be deemed to have been transferred based on the balance payment date, which is the transfer date, due to the loss of the instant housing before the remainder payment date. Thus, the instant disposition imposing capital gains tax on the premise that the instant housing exists during the transfer date is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) On January 27, 2002, the Plaintiff purchased the instant house located on the instant land and its ground from the largest KK (However, the largest KK obtained approval for the use of the instant house as of January 28, 2002, and completed the registration of ownership preservation on January 31, 2002) and completed the registration of ownership transfer on March 5, 2002.

(2) On June 14, 2005, the main contents of the sales contract concluded between the Plaintiff and the Nonparty Company, the executor of the reconstruction project (hereinafter “instant sales contract”) are as follows (No. 7 of the certificate of No. 7, but the bottom part of the following is stated as follows).

(3) The Plaintiff received respectively down payment of KRW 400 million on June 22, 2005, the intermediate payment of KRW 2.4 billion on October 19, 2005, and the remainder of KRW 1.2 billion on December 29, 2005.

(4) On December 28, 2005, the day immediately before the remainder payment date, the non-party company removed the instant house at the expense of the non-party company, through the development of GG, Inc., the removal agent company, and completed the registration of destruction of the instant house on the same day. In addition, the non-party company directly paid the tenants of the instant house KRW 25 million in the name of moving expenses at the expense of the non-party company. Meanwhile, the Plaintiff paid the deposit to the tenants at the Plaintiff’s expense.

(5) At the time, the newPP, which was in charge of purchasing the business site as an employee of the non-party company, was investigated by the defendant in relation to the instant case. ① The purchase price principle for the non-party company’s business site is higher than 2.8 times the officially announced price in the case of land, and the amount set differently according to the construction year in the case of the building. Since the instant housing was important, the Plaintiff was called to purchase KRW 5 billion or not to exclude the subject of the project site. ② At the expense of the non-party company, the non-party company directly took charge of moving and surrendering the tenants by paying moving expenses and surrendering expenses to the tenants at the expense of the non-party company. ③ The non-party company, as the implementer, was to bear capital gains tax on the non-party company’s business site. However, the non-party company was to bear capital gains tax calculated as the actual transaction price for the transfer of the instant land under the condition of the instant housing, while the non-party company was remarkably liable for the transfer income tax on the non-party company’s business site.

(6) Upon receiving the instant tax investigation from the Defendant, the Plaintiff intended not to sell the instant house because the instant house was purchased as a new building with a lot of rent revenue and its countermeasures against aging. However, the Plaintiff concluded that the NewPP was almost every day, and that the Plaintiff was fully responsible for the transfer income tax. The purchase price of KRW 4 billion is the amount reflecting the value of the instant land and the instant house. ② The moving expenses and surrender expenses for the tenants of the instant house were paid directly by the Nonparty Company, and the Plaintiff did not know the details thereof. ③ The Plaintiff stated to the effect that the removal of the instant house was directly treated by the Nonparty Company, and thus, the Plaintiff did not know the details thereof.

(7) According to the "Ssung-dong land record (Evidence No. 5-1) in the preparation of the non-party company, the amount of compensation set by the non-party company to compensate to the props was divided into the part of the land and the part of the building. The plaintiff also divided into the part of the land in this case (the amount of compensation KRW 496,860,00) and the part of the housing in this case (the amount of compensation KRW 366,569,500).

(8) Meanwhile, the Plaintiff constitutes a person who owns three or more houses for one household as of the date of conclusion of the instant sales contract and the date of the remainder payment.

[Ground of recognition] Facts without dispute, Gap evidence 3 through 8, Eul evidence 2-1 through 8, Eul evidence 4, Eul evidence 5-1, 2, 3, Eul evidence 6, and the purport of the whole pleadings

D. Determination

(1) Whether the subject matter of the instant sales contract includes the instant house

The above facts are as follows. ① Under Article 1 of the sales contract of this case, the sale and purchase real estate includes buildings and underground structures on the land of this case. It cannot be easily concluded that only the land of this case can be excluded from the sale and purchase object by interpretation of disposal documents. ② Generally, sale and purchase of the land of this case, unless the building on the ground is worn out to the extent that it can not be used as a house. Furthermore, the Plaintiff’s assertion that the land of this case was newly constructed on the end of January 2002 and purchased the land of this case except for the house of this case is difficult to obtain, and ③ the Plaintiff is not liable for the removal and sale of the house of this case to the non-party 4 billion won as well as the sale and sale price of the house of this case. The Plaintiff also stated that the non-party 5 company was not responsible for the removal and sale of the house of this case as well as the sale and sale price of the house of this case, and it is also difficult to clearly state that the non-party 5 company was responsible for the removal and sale price of this case.

Therefore, this part of the plaintiff's assertion is without merit.

(2) Whether the instant housing should exist as of the remaining payment date as a taxation requirement

In light of the fact that the Income Tax Act, regardless of motive or registration of assets, provides that the assets shall be actually transferred for price due to sale, exchange, investment in kind to a corporation, etc., and that the transfer income tax stipulates that the transfer income tax shall be imposed on the income (gains accruing from transfer) that the transferor gains from the above transfer, the transfer income tax shall not be subject to taxation on the "property subject to transfer", which is the income that the transferor gains from the transfer, but shall not be subject to taxation on the "property subject to taxation on the transfer" itself. Thus, it shall not be required that the assets themselves remain as of the date of liquidation stipulated in the Income Tax Act as the time of the transfer. In other words, at the time of the conclusion of the sales contract of this case, the sale contract of this case included not only the land of this case but also the housing of this case, which included the requirements for taxation on the transfer income tax at the time of the transfer contract, and furthermore, as long as the Plaintiff, who was the transferor, received the payment of the purchase price under the sales contract of this case from the non-party company, received the remainder payment.

Therefore, there is no reason for the plaintiff's assertion on this part.

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.