Gwangju District Court 2008Guhap815 ( August 27, 2009)

early 2007 Mine0818 ( December 12, 2007)

Where a transfer becomes null and void, whether and when the transfer is taxable;

If the act of transfer is null and void, it shall not be subject to capital gains tax because the actual transfer of assets is not carried out, and even if the transfer is carried out again, such transfer shall not be subject to capital gains tax, and it shall not be subject to capital gains tax, and the transfer registration which is null and void shall not be subject to

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

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 2,447,915,610 against the plaintiff on January 2, 2007 by the defendant shall be revoked.

1. Case issues and judgment

The key issue of this case is whether the time of acquiring the forest of this case is considerably divided, and whether the disposition of this case is unlawful because it did not deduct necessary expenses from the transfer value of the forest of this case. Among them, regarding the time of acquiring the forest of this case, the issue is (i) the meaning of the "registration of transfer of ownership" under each subparagraph of Article 162 (1) of the former Enforcement Decree, and (ii) whether the registration corresponding to the real relation constitutes the "registration of transfer of ownership" under Article 162 (1) 2 of the former Enforcement Decree, (iii) whether the plaintiff acquired the forest of this case as long as the long-term installment, (iv) whether the acquisition value, expenditure, deduction of transfer expenses, and necessary expenses are not deducted, and whether it is unlawful to conduct an estimated investigation and decision based on the conversion value calculated by the method of Article 176-2 (2) of the former Enforcement Decree.

The first issue is that "transfer income tax is levied on the income accrued from the transfer of assets (Article 4 (1) 3 of the Income Tax Act)" and "transfer" means that the assets are actually transferred for consideration due to sale, exchange, investment in kind to a corporation, etc. regardless of the registration or enrollment attached to the assets (Article 8 (1) of the Income Tax Act). Meanwhile, Article 14 (2) of the Framework Act on National Taxes provides that "the calculation of tax base in tax laws shall apply according to the substance of the transfer, regardless of the name or form of income, profit, property, act or transaction," and the transfer of real estate is based on the premise that the former owner's acquisition is not in an indivisible relationship between the former owner and the new owner's transfer of real estate under the premise that the transfer of ownership is null and void, and thus, it cannot be deemed that the new owner is not subject to transfer income tax due to the transfer of ownership or transfer of assets under the former Enforcement Decree of the Income Tax Act, and thus, it cannot be deemed that the transfer of ownership is invalid and void.

In addition, as to the above (ii) issues, the Plaintiff’s registration is consistent with the true legal relationship even if there is any defect in the registration procedure. According to the above facts, the instant transfer registration was concluded on March 18, 200 and the instant adjustment was made between the Network Ma and the Republic of Korea. Accordingly, it is reasonable to view that the ownership transfer registration of the instant forest was made in accordance with the actual legal relationship by paying the instant adjustment amount to the Republic of Korea on May 28, 2003. Accordingly, it is reasonable to view that the instant transfer registration was not made in accordance with Article 162(1)2 of the former Enforcement Decree of the Income Tax Act on the premise that the instant transfer registration was not made in excess of 20 days prior to the date of settlement, and that the instant transfer registration was not made in excess of 20 days prior to the date of payment of the purchase price under Article 162(1)2 of the former Enforcement Decree of the Income Tax Act on the premise that the instant transfer registration was made in excess of 30 days prior to the date of payment.

In addition, with respect to the above major issues, it is difficult to find that the Plaintiff spent 50 million won as litigation costs of this case other than 17841 and 4 other than the above 92 division 17841, and the evidence submitted by the Plaintiff is difficult to find that each of the above lawsuits is an essential procedure for acquiring the forest land of this case, and it is also difficult to find that the Plaintiff paid 1 billion won to the members of this case separately from the purchase of the forest land of this case or paid 300 million won as the introduction cost of this case to the Korea-B under Article 16 of the former Enforcement Decree of the Act on the Acquisition of Forest and Housing of this case. In light of the above, it is insufficient to find that there is no evidence to acknowledge that the transfer value of the forest of this case cannot be acknowledged as necessary expenses or the transfer value of the forest of this case under Article 163 (1) 7 of the former Enforcement Decree of the Act on the Acquisition of Land and Housing of this case, and there is no other evidence to find that the transfer value of the forest of this case is insufficient.

However, in relation to the deduction of necessary expenses, the "capital expenditure" portion (paragraph 2 (c) (2) (b) of the judgment of the court of first instance) shall be used as follows, reflecting the result of arguments in the trial in the court of first instance, etc.:

2. Matters to be corrected or added; and

(2) Since the Plaintiff’s construction work on the aggregate of KRW 1,50,000 and KRW 3,688,00,000 for the purpose of this case’s construction work, the Plaintiff’s construction work on the aggregate of KRW 1,50,00 and KRW 9,00,00 for the purpose of this case’s construction work on the ground that there was no evidence suggesting that the construction cost would have been increased for the purpose of this case’s construction work on the ground that the construction work on the aggregate of KRW 1,50,00 and KRW 1,50,00,000,000 for the purpose of this case’s construction work on the ground that there was no evidence suggesting that the construction cost would have been increased for the purpose of this case’s construction work on the ground of KRW 1,500,000,000,000 for the purpose of this case’s construction work on the ground of this case’s construction work on the ground of this case’s new construction work period.

3. Quotation of judgment of the first instance;

The court's explanation in this case is identical to the part of the reasoning of the judgment of the court of first instance in addition to the change of Paragraph 2(c) and Paragraph 2(b) from among the judgment of the court of first instance to the above "revision or Additional Determination", which is not sufficient to recognize the plaintiff's assertion as additional evidence submitted in the court of first instance. Thus, it is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

4. Conclusion

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