Whether the right of sale falls under "other assets excluded from unregistered transfer";

The sales contract for the right to sell was transferred, and there was a special agreement for the buyer to accept the balance, and even if the registration of ownership was made, the taxation of this case was unlawful for lack of tax avoidance purpose, so long as the buyer entered into a special agreement to pay the balance.

Article 104 of the Income Tax Act shall apply to transfer income tax rates.

Article 168 of the Enforcement Decree of the Income Tax Act excluding Unregistered Transfer Assets

Each disposition of imposition of KRW 60,389,320, respectively, for the transfer income tax belonging to the year 2003, which the Defendant imposed on the Plaintiffs on October 5, 2004, shall be revoked.

The costs of appeal are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

We examine the grounds of appeal.

1. Details of the disposition;

A. On February 24, 200, the plaintiffs, who are married couple, acquired from ○○ Co., Ltd. (hereinafter "the right to sell the apartment of this case") the right to sell the apartment of this case (hereinafter "the right to sell the apartment of this case") on ○○○ Co., Ltd. (hereinafter "the right to sell the apartment of this case") located at ○○○ Co., Ltd. (hereinafter "○○ Co., Ltd.") located at ○○○○○ Co., Ltd. (hereinafter "the apartment of this case"), and transferred the right to sell the apartment of this case to ○○○○ and ○○○ Co., Ltd. on March 14, 2003.

C. After doing so, the defendant confirmed that ○ Heavy Industries completed the completion inspection on February 26, 2003 for the apartment of this case, and obtained approval for use on February 28, 2003, and that on September 29, 2003, the transfer of real estate of less than one year holding period was subject to the additional imposition of capital gains tax of KRW 11,70,000 on each of the plaintiffs (the plaintiffs paid all of them) and on October 5, 2004, the transfer of the right to sell this case was deemed to be the transfer of unregistered assets, and applied the tax rate of KRW 60,389,320 for each transfer income tax for the year 203 to the plaintiffs by applying the tax rate of the unregistered transferred assets (60%).

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

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The plaintiffs had remaining 2,904,040 won at the time of the conclusion of the contract for the transfer of the right to sell the apartment in this case, and the ○ Heavy Industries, which is the seller of the right to sell in this case, did not register the preservation of ownership in its name. Furthermore, in the special agreement with the buyer, the buyer did not pay the remaining class of the sale in this case and the buyer did not register the acquisition of the apartment in this case as the buyer did not transfer the name of the right to sell in this case under the condition of the right to sell in this case. Furthermore, since the transfer of the right to sell in this case did not constitute a case where the purchaser of the right to sell in this case transfers the property without registering the acquisition of the property, the transfer of the right to sell in this case does not constitute a case where the purchaser of the right to sell in this case transfers the property without registering the acquisition of the property, and thus, the disposition in this case should be revoked because it constitutes a different premise.

B. Relevant statutes

∎ 소득세법(2003. 12. 30. 법률 제7006호로 개정되기 전의 것)

○ Scope of transfer income under Article 94 of the Income Tax Act

(1) The transfer income shall be the following income generated in the concerned year:

1. Income accruing from transfer of land (referring to a lot of land subject to registration of land category in the cadastral record under the Cadastral Act) or buildings (including the facilities and structures annexed to such buildings);

2. Income accruing from transfer of any right to the real estate falling under any of the following items:

(a) Right to acquire real estate (including the right to acquire a building upon completion of its construction and its appurtenant land);

(b) Superficies;

(c) Chonsegwon and registered real estate lease; and

○ Transfer Income Tax Rate Article 104 of the Income Tax Act

(1) The amount of capital gains tax calculated by applying the following tax rates to the tax base of transfer income in the relevant year (hereinafter referred to as "calculated amount of capital gains tax"). In such cases, when one asset falls under two or more of the tax rates under the following subparagraphs, the highest tax rate shall apply thereto:

3. Unregistered transferred assets:

60/100 of the tax base of transfer income;

(3) "Unregistered transferred assets" in paragraph (1) 3 means that a person who has acquired assets under Article 94 (1) 1 and 2 transfers such assets without making a registration for acquisition thereof: Provided, That assets as prescribed by Presidential Decree shall be excluded.

∎ 소득세법 시행령(2005. 2. 19. 대통령령 제18705호로 개정되기 전의 것)

○ The scope of assets excluded from unregistered transfer under Article 168 of the Enforcement Decree of the Income Tax Act.

(1) The term "property prescribed by Presidential Decree" in the proviso to Article 104 (3) of the Act means the following assets:

1. Assets acquired under a long-term installment, whose registration for an acquisition of such assets at the time of transfer is impossible under the term of such contract;

2. Assets whose registration of acquisition of such assets at the time of transfer is impossible by the provisions of Acts or the decision of the court;

3. Land as stipulated in subparagraphs 2 and 4 of Article 89 of the Act and Article 69 (1) of the Restriction of Special Taxation Act;

4. One house for one household as stipulated in subparagraph 3 of Article 89 of the Act, whose registration is impossible as it fails to obtain a construction permit under the Building Act; and

5. Assets for which the registration of ownership transfer by inheritance is not made, and which are transferred to the project operator under Article 18 of the Act on Acquisition of and Compensation for Land for Public Works Projects; and

(c) Fact of recognition;

(1) 원고 등은 2000. 2. 24. ○○중공업과 사이에, 이 사건 아파트에 대한 분양권을 589,140,000원에 취득하기로 하되, 계약금 88,370,000원은 계약당일, 중도금 441,850,000원은 2000. 8. 8., 2001. 2. 8., 2001. 8. 8., 2002. 2. 8., 2002. 8. 8. 5회에 걸쳐 각 88,370,000원씩을, 잔금 58,920,000원은 입주 시에 지급하기로 하는 ○○∐ 공급계약(이하 '이 사건 분양계약'이라 한다)을 체결하고 위 계약금을 납부하였다.

(2) According to the general provisions of Article 2 of the sales contract of this case, where the plaintiffs, who are the buyers, pay part payments before the date of the above agreement, ○ Heavy Industries grants a discount of the amount calculated according to the number of days of advance payment by applying a discount rate of 8% per annum to the advance payment amount. If the discount rate is needed due to changes in the interest rate, etc., ○ Heavy Industries notifies the plaintiffs of the discount rate adjusted considering the market interest rate, etc., and applies the changed rate to the portion paid after notice. According to Article 8, ○○ Heavy Industries, which is the seller, shall make the registration of ownership preservation within 60 days from the date of approval for use of the apartment of this case. The plaintiffs shall pay the purchase price and other payment, and the plaintiffs shall complete the registration of ownership transfer at their own expense within 60 days from the date of completion of the registration of ownership transfer procedure, and the damages and public charges incurred by the plaintiffs, etc. without completing such transfer procedure shall be borne by the plaintiffs.

(3) The plaintiffs paid the intermediate payment of KRW 8,370,00 on the agreed date, and paid KRW 353,480,00 for the intermediate payment of KRW 350,50 on October 5, 200 at a discount of KRW 322,567,450 at a rate of KRW 30,912,550 above the date of each agreement, and actually paid the remainder of KRW 58,920,000 at a one-time advance payment, taking into account that the discount rate of KRW 50,00 due to a change in the market interest rate has been changed and it is difficult for ○ Heavy Industries to receive some of the money from ○○ Heavy Industries at a rate of KRW 50,00,00 on October 26, 201, after obtaining a discount of KRW 6,960 at a rate of KRW 30,50,000 from the scheduled date, and eventually, the plaintiffs paid the remainder to KRW 40,5090,2000.

(4) The plaintiff's ○○○○ University worked for 35 years or more as a professor of ○○○ University and retired honorary. The plaintiff et al. accepted the opinion of his children living in the private house located in ○○○○○○○○○-dong, 00, and sold the apartment of this case as above. However, the plaintiff et al. failed to live in the apartment of this case due to the relation where he did not live in the apartment of this case. The plaintiff et al. was willing to sell the right to sell the apartment of this case to the seller of this case, and the plaintiff et al. was al. al. to sell the remaining 967,095,960 won to ○○○○○○, ○○○○, and ○○○○○, from around April 1974, 1974. The plaintiff et al. transferred the remaining 967,000 won to the purchaser of this case's sales contract and the remaining 306,007,0800 won.

(5) On the other hand, on January 2, 2003, 000, ○ Heavy Industries notified the Plaintiff’s ○○○ to pay the balance of the sales to the Plaintiff’s 2,904,040 won on February 28, 2003. Accordingly, on February 20, 2003, ○○ Heavy Industries completed the completion inspection on February 26, 2003 from the ○○○ Office and received approval for use on March 28, 2003, ○○○○ and ○○○○, the buyer, paid all the balance of the sales to 2,904,04,040 won and completed the registration of ownership transfer on May 23, 2003 (each share).

[Ground of recognition] Evidence Nos. 1, 2, 5 1, 2, 6, 5, 6-1, 2, 7, 8, 7, and 8 of evidence Nos. 1, 5, and 6-1, 2, 7, and 8 of evidence Nos. 1, 5, and the purport of the whole pleadings

C. Determination

(1) According to Article 104 (3) of the Income Tax Act, unregistered assets refer to the transfer of assets under Article 94 (1) 1 and 2 of the Income Tax Act by a person who acquires assets without registering the acquisition of such assets. According to Article 94 (1) 2 (a) of the Income Tax Act, the right to acquire a building and its appurtenant land are also included in the right to acquire real estate when the building is completed, so this case’s sales right also constitutes “property that can become unregistered transferred assets.”

(2) Furthermore, in the acquisition of assets, it is recognized that no purpose of speculation exists, such as tax avoidance through the transfer of assets without the intention of tax evasion, acquisition of gains from the resale, etc. In other words, in cases where it is deemed harsh to enforce a liability which did not register the acquisition of the assets at the time of transfer to the transferor, the transfer of assets shall be excluded from the transfer of unregistered assets, which is subject to transfer income tax, corresponding to cases under the proviso of Article 104(3) of the Income Tax Act and each subparagraph of Article 168(1) of the Enforcement Decree of the Income Tax Act (see Supreme Court Decision 2004Du9494, Oct. 28,

(3) According to the above fact that ○○ Industries was not registered for sale in the name of 6th day before the sales contract of this case, if it appears that the plaintiffs had not been registered for sale in the name of 6th day before the sale contract of this case, 4th day before the purchase and sale contract of this case, and that the plaintiffs had not been registered for sale in the name of 6th day before the sale contract of this case. The plaintiffs had not been registered for sale in the name of 6th day after the sale contract of this case. The plaintiffs had not been registered for sale in the name of 6th day after the sale in the name of 4th day after the purchase and sale contract of this case. The plaintiffs had to be registered for sale in the name of 8th day after the sale in the name of 6th day after the sale in this case. The plaintiffs had to be registered for sale in the name of 6th day after the sale in this case, and there were no concerns that the sale in this case had not been registered for sale in the name of 4th day after the sale in this case.

Therefore, it is recognized that there is an inevitable circumstance that the plaintiffs did not register the acquisition of their assets at the time of the transfer of the right to sell this case. Thus, the transfer of the right to sell this case by the plaintiffs should be excluded from the transfer of unregistered assets subject to transfer income tax pursuant to the proviso of Article 104 (3) of the Income Tax Act, and the subparagraphs of Article 168 (1) of the Enforcement Decree of the Income Tax Act, but the disposition of this case in

3. Conclusion

Therefore, the plaintiffs' claims shall be accepted for the reasons of the reasons, and it is decided as per Disposition.