early 2010 Heavy0255 (Law No. 19, 2010)

Land transaction permission and the legal transfer of the land;

Since the plaintiff legally transferred the land to a third party with land transaction permission, the disposition imposing capital gains tax is legitimate.

2010Guhap3416 Assessment and Correction of Transfer Income Tax

이〇〇

〇〇세무서장

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 139,749,660 against the Plaintiff on November 1, 2009 shall be corrected to KRW 77,479,790.

1. Basic facts

가. 원고는 2005. 6. 14. 박AA와 사이에 〇〇시 〇〇면 〇〇리 544-3 목장용지 4,505㎡ 중 일부(2005. 8. 23. 같은 리 544-13 목장용지 1,091㎡로 분할등기 되었다)와 같은 리 544-2 도로 398㎡를 아래와 같이 300,000,000원에 매도하는 내용의 매매계약을 체결하였다(이하 위 매매대상 토지인 분할 후 같은 리 544-13 목장용지 1,091㎡와 같은 리 544-2 도로 398㎡를 '이 사건 토지'라 한다).

- down payment of 50,000,000 won

- The intermediate payment of KRW 60,000,000 and the due date of June 30, 2005

- Any balance of KRW 190,000,000 and the due date of July 26, 2005

B. On January 8, 2009, the Plaintiff entered into a sales contract with BB to sell the instant land at KRW 270,000,000, and was paid KRW 30,000 as the down payment from BB prior to the same day. As of February 10, 2009, the Plaintiff and BB entered into a sales contract with the same content as the above sales contract and obtained land transaction permission from the Defendant for the instant land.

C. On February 12, 2009, with respect to the instant land, the registration of ownership transfer was made under the name of BB from the Plaintiff on February 10, 2009 on the ground of a sale contract on February 10, 2009.

D. On May 1, 2009, the Plaintiff filed a preliminary return of capital gains tax on the instant land with the Defendant on May 1, 2009, on the grounds of the self-sufficiency for eight years. However, on November 1, 2009, the Defendant rendered the instant disposition imposing capital gains tax of KRW 139,749,660 on the Plaintiff by deeming the instant land as a non-business land and applying the heavy taxation rate.

E. On January 7, 2010, the Plaintiff filed a tax appeal against the instant disposition, and subsequently filed the instant lawsuit upon receipt of a decision of dismissal on May 19, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, 4, 9-1, 2, 10, 10, 10, and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

On June 14, 2005, the Plaintiff concluded a sale and purchase contract on the land of this case with Park Jong, and received full payment on August 25, 2005, but did not obtain a land transaction permit on the land of this case, and created a collateral security on the land of this case without transferring the registration upon request by Park Jong-A to make an unregistered pre-sale. The Plaintiff believed the horses of Park Jong-A to bear a transfer tax, prepared a sale and purchase contract with the formerB around 2009, and completed a registration of ownership transfer to the formerB. Thus, although the Plaintiff did not obtain a land transaction permit with Park Jong-A, the Plaintiff transferred the land of this case to Park Jong-B on August 25, 2005, on which the date on which the purchase price was settled between Park and Park-A, the subsequent transfer income tax should be borne by Park-A, and therefore, the transfer income tax on the land of this case should be calculated on July 4, 2005 as the basis of the amount of transfer income tax on the land of this case.

(b) Related statutes;

It is as shown in the attached Form.

C. Whether the instant disposition is lawful

1) 원고가 2005. 6. 14. 박AA와 사이에 이 사건 토지에 관한 매매계약을 체결한 사실은 앞서 본 것과 같고, 갑 1호증, 5 내지 8호증, 10호증(각 가지번호가 있는 경우 가지번호 포함)의 각 기재에 변론 전체의 취지를 종합하면, 원고가 2005. 7. 15. 박AA로부터 30,000,000원을 지급받은 사실, 원고가 박AA로부터 이 사건 토지에 대한 잔금을 지급받았다고 하는 2005. 8. 25.경에 즈음하여 이 사건 토지 중 〇〇시 〇〇면 〇〇리 544-13 목장용지 1,091㎡가 모 지번인 544-3 토지로부터 분할된 사실, 원고와 전BB 사이에 이 사건 토지에 관한 매매계약서가 작성된 2009. 1. 8. 박AA가 원고에게 이 사건 토지에 관한 양도세를 지급하겠다는 내용의 확약서를 작성해 준 사실, 원고가 2009. 1. 8. 전BB로부터 이 사건 토지의 매매계약에 따른 계약금 30,000,000원을 지급받은 직후 위 돈을 박AA의 계좌로 송금하여 준 사실을 인정할 수 있으나, 위 인정 사실만으로 원고가 박AA와 사이에 이 사건 토지에 관하여 체결된 매매계약에 따라 그 매매대금 300,000,000원을 모두 지급받았다는 사실을 인정하기 부족하고, 달리 이를 인정할 증거가 없다.

2) Meanwhile, in a case where a contract for sale and purchase of the land, which is subject to permission for a land transaction contract under the Act on the Utilization and Management of the National Territory, is in a state of flexible invalidation because it did not obtain a transaction permission, it cannot be deemed that the purchase price was paid first and the transferor was in custody, and thus constitutes transfer of assets subject to taxation of capital gains tax, or that there was income from transfer of assets (see, e.g., Supreme Court Decision 98Du13492, Oct. 27, 2000). Even if the Plaintiff was fully paid the price pursuant to the sale and purchase contract from the ParkA around August 25, 2005, the Plaintiff cannot be deemed to have lawfully transferred the instant land to the ParkA, since the Plaintiff did not have obtained a land transaction permission for the land that was concluded with the ParkA, and thus, the Plaintiff cannot be deemed to have lawfully received a land transaction permission from the Plaintiff and ParkA on the premise that the land was transferred between the Plaintiff and ParkA, but the Plaintiff was not subject to exercise the land transaction permission.

3. Conclusion

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