Seoul Administrative Court 201Gudan20614 (20 April 20, 2012)

Even if the location and area of the land at the time of sale is not determined, the time when the price is settled shall be regarded as the time of transfer.

In light of the fact that part of the land before subdivision was sold and the sale price was fully paid, and the sale land was determined through the construction work of housing site, there was no additional payment or settlement of the price paid by the purchaser, and the transfer registration of the purchaser was delayed due to the construction work of housing site preparation work, etc., the time of transfer should be deemed the time of liquidation of the sale price.

2012Nu13629 Revocation of disposition of imposing capital gains tax

XX

Head of Seocho Tax Office

Seoul Administrative Court Decision 2011Gudan20614 decided April 20, 2012

November 8, 2012

December 6, 2012

1. Of the judgment of the first instance court, the part against the plaintiff falling under the order to revoke below shall be revoked.

The Defendant’s disposition of imposing capital gains tax of KRW 000 for the year 2006 against the Plaintiff on November 1, 2010 is revoked.

2. The plaintiff's remaining appeal is dismissed.

3. 85% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

The judgment of the first instance shall be revoked. Each disposition of the Defendant rendered against the Plaintiff on November 1, 2010 in the capital gains tax of KRW 000 for the year 2006 and the capital gains tax of KRW 000 for the year 2007 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning of the judgment of this court is as follows: (a) 'the summary of the plaintiff's assertion' and 'the legitimacy of the disposition' from '1.1. to 2.2. (b) 'the main point of the plaintiff's assertion' and 'the (1) 'the plaintiff is a title truster of the land before division' and 'the pertinent part of the judgment of the court of first instance (from 4th to 5th) 'the last place of the judgment of the court of first instance' and the main sentence of Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act 'the judgment of the court

2. Parts to be dried;

[2] Whether the transfer date of the land Nos. 1 and 2 of this case is September 30, 1990

(A) Article 27 of the former Income Tax Act (wholly amended by Act No. 4803, Dec. 22, 1994; hereinafter the same) provides that "the time of acquisition and time of transfer in calculating gains from transfer of assets shall be determined by Presidential Decree." Article 53 (1) of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 14467, Dec. 31, 1994; hereinafter the same shall apply) provides that "the time of acquisition and time of transfer under Article 27 of the Act shall be the date of liquidation of the price of the relevant assets except in the following cases." subparagraph 1 provides that "if the date of settlement of the price is unclear, the date of the balance payment agreement shall be the date of receipt of registration entered in the register, register, or list: Provided, That if the date of the balance payment agreement is not confirmed or the period from the date of receipt of the registration under a sales contract exceeds one month, the date of receipt of registration entered in

(B) In this case, the following facts can be acknowledged in full view of each testimony of Gap evidence Nos. 1, 2, 3, and 4-1 to 4, Gap evidence Nos. 5, 6, 18, 19, Eul evidence Nos. 3, witness AA of the first instance trial, and Eul evidence Nos. 1, 3, and 4-1 to 5, 6, 18, 19, and Eul evidence

1) On December 2, 1989, the Plaintiff acquired the land before subdivision in the name of thisA in order to develop it as a housing site. On August 28, 1990, the Plaintiff divided 440 square meters out of the land before subdivision and sold 000 won to this B. The Plaintiff received the down payment of KRW 000 on the day of the contract, the intermediate payment of KRW 000 on September 15, 1990, and the remainder of KRW 000 on September 30, 1990, and received the payment of KRW 000 in full, respectively.

2) Although the Plaintiff was fully paid the above purchase price from BB, the housing site development for the land before the subdivision was not completed, and the part among the buyers of the land before the subdivision was not finalized, the Plaintiff was unable to divide 440 square meters and complete the registration of ownership transfer under the name of BB. At the request of BB, the Plaintiff appears to have obtained a certification of the Land Sale Confirmation Act stating that 440 square meters (including 10 percent of the shared area) out of the land before the subdivision in October 1990 was sold to B before the subdivision in this year, and delivered it to B [the Plaintiff].

3) 이BB은 분할 전 토지에 대한 정지작업비, 도로개설 및 포장비, 상 ・ 하수도 및 전기 시설비, 축대 설치비 등 택지조성비용의 분담금으로 000원 이상을 원고에게 지급하였고, 장차 택지로 개발이 완료된 후 위 매수 면적에 해당하는 토지에 대한 소유권확보를 담보하기 위하여, 1996. 12. 3. 분할 전 토지 중 1,270/4,743 지분[원고 매수 면적 약 1,454㎡(≒440평)에서 도로 면적 184㎡를 뺀 나머지 1,270㎡에 해당하는 지분이다]에 관하여 근자당권자 이BB, 채무자 원고, 채권최고액 000원(이는 위 매매대금 및 택지조성비용 분담금과 이전등기 시까지의 토지가격상승분을 감안하여 정해진 금액이다)으로 된 근저당권 설정등기를 경료받았다.

4) 그 후 분할 전 토지에 관한 택지조성공사가 완료되자 원고를 비롯하여 분할 전 토지 중 일부를 각각 매수한 매수인들 사이에 매수 위치 및 면적 확정에 관한 합의가 성립되었는데, 이BB은 이 사건 제1, 2 토지 부분을 취득하는 것으로 결정되었다. 이 사건 제1, 2 토지의 면적은 합계 998㎡(= 이 사건 제1 토지 525㎡ + 이 사건 제2 토지 471㎡)로서 당초 매수 면적 약 1,454㎡(≒440평)에 미달하지만, 이는 분할 전 토지가 택지로 개발되는 과정에서 설치된 도로, 녹지, 우물 등의 면적을 감안하여 당초 매수 면적이 감보되었기 때문이다.

5) Even after the land before subdivision was divided into each of the instant lands, etc. on August 3, 1998, B had not completed the registration of ownership transfer with respect to the instant land Nos. 1 and 2. On July 6, 2006, B cancelled the registration of creation of a collateral security right with respect to the instant land of KRW 000 with the maximum debt amount of KRW 000,000 with the Plaintiff’s debtor, and upon the cancellation of the registration of ownership transfer with respect to the instant land No. 1 under the name of EB, the former owner of the instant land, and with respect to the instant land No. 2, the registration of ownership transfer due to purchase and sale as of June 28, 2006 under the name of OCC, the former owner of the instant land, made a registration of ownership transfer with respect to each of the instant land of KRW 1,000,000,000,000,000,000,000 each of the instant land under the individual land price of the instant land.

(C) As seen above, on August 28, 190, the Plaintiff sold 40 square meters of the land pre-division 1 and 2 of this case to B, and received full payment from B on September 30, 1990. The 440 square meters of B’s purchase of the land pre-division 1 and 2 of this case was determined through the Housing Site Creation Corporation, and this B paid the remainder of the above purchase price to the Plaintiff on September 30, 1990, or there was no less than the settlement of the purchase price. The share of the cost of housing site construction paid by B to the Plaintiff constitutes the land development cost disbursed to increase the value of the land already purchased in addition to the purchase price of the land (the Plaintiff asserts that the purchase price of the land pre-division 1 and 3 of this case was collected from the buyer after the pre-division 1). The Plaintiff’s sale of the land within 90 square meters of this case’s land was 90 percent of the sale price of this case’s land.

Therefore, the imposition of transfer income tax for the year 2006 on the premise that the Plaintiff transferred the land Nos. 1 and 2 to OrD and OrCC only after July 6, 2006 among the dispositions of this case is unlawful.

(D) Meanwhile, Article 26-2(1)2 of the former Framework Act on National Taxes (amended by Act No. 4277 of Dec. 31, 190) provides that no transfer income tax shall be imposed after the expiration of the two-year period from the date on which the transfer income tax is assessable; Provided, That where the transfer income tax is evaded, refunded, or deducted by fraud or other unlawful means, it may not be imposed after the expiration of the five-year period from the date on which the transfer income is assessable. Article 100(1) of the former Income Tax Act provides that a resident having the transfer income amount in the current year shall report the transfer income tax base from May 1 to 31 of the following year. Meanwhile, the Plaintiff’s transfer of land to B shall be deemed to be the date of September 30, 190, and even if the Plaintiff’s transfer income tax was imposed upon the transfer of land to B, it shall be deemed that the Plaintiff’s imposition of transfer income tax should be made within the exclusion period of 8 years from the date following the filing deadline for the transfer income tax base.

(3) Whether the income from the transfer of land No. 3 of this case reverts to the plaintiff

On December 2, 1989, at the time the Plaintiff acquired land before subdivision under the name of thisA, the non-party company was not yet established, and there was no change in the nominal owner on the register of the land before subdivision and the land of this case divided from the above third party until the land of this case was transferred to EE. The fact that multiple collateral security holders made the Plaintiff as the debtor with respect to the land before subdivision was established is acknowledged as above. In full view of the contents of evidence Nos. 3-3, 10, and 18 as to the land of this case, the establishment registration of collateral security holders, the debtor, and the maximum debt amount at KRW 00 on November 28, 1997 was completed with respect to the land of this case as to the land of this case, the Plaintiff sold the land of this case to the non-party company 300 won on behalf of the Plaintiff and the representative director of the non-party company, and transferred the land to the non-party 3G, which the Plaintiff asserted to the non-party 300 billion won.

In light of the above facts, if there is no objective evidence that the non-party company acquired the third land of this case from the plaintiff before the third land of this case was transferred to EE, the non-party company transferred the third land of this case to EE and obtained income from the third land of this case is the plaintiff, and the non-party company's statement in the 1, 2 (a sales contract and receipt in the name of the non-party company as to the third land of this case), 7 through 9, 13 through 16 (a sales contract and receipt in the name of the non-party company as to the third land of this case), 7 through 9, 13 through 16 (a tax base and tax amount return, etc. of the non-party company as to the third land of this case) is insufficient to reverse the above recognition (the plaintiff submitted evidence that the non-party company reported and paid the corporate tax by calculating the income from the transfer of the third land of this case as the revenue amount of the non-party company of this case, but even if the plaintiff's assertion is acknowledged, it does not violate the above facts finding).

Therefore, each disposition of this case imposing income tax on the plaintiff for the year 2007 following the transfer of land No. 3 of this case is legitimate. The plaintiff's assertion in this part is without merit.

(4) Sub-determination

Among the dispositions of this case, the imposition of capital gains tax of KRW 000 on the land Nos. 1 and 2 of this case shall be revoked as it is unlawful. The imposition of capital gains tax of KRW 000 on the land No. 3 of this case is legitimate.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed for reasons. Since the judgment of the court of first instance is partially unfair with the conclusion, the plaintiff's appeal shall be partially accepted, and the part against the plaintiff falling under the part against which the cancellation is ordered under the judgment of the court of first instance shall be revoked, and the disposition of imposition of capital gains tax of 00 won for the year 2006 shall be revoked, and the plaintiff's remaining appeal shall be dismissed for