The early high-2013-China-4822

Unregistered pre-sales

The restriction on permission for a land transaction contract of this case cannot be deemed as a case where the execution of registration procedure for its acquisition is legally impossible, and thus, it cannot be deemed as an inevitable circumstance for the plaintiffs to not register their acquisition.

Article 88 of the Income Tax Act

2014Gudan1021 Revocation of Disposition of Imposing capital gains tax

AA

BB Director of the Tax Office

15.05.26

2015.07.14

1. All of the plaintiff's claims are dismissed.

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

1. Details of the disposition;

(a) The current registration of real estate transfer;

In the first place, each real estate listed in the attached list of real estate (hereinafter referred to as "the real estate in this case") is owned by the networkCC (hereinafter referred to as "the network"), and the registration of ownership transfer has been completed as stated in the column of "registration date of the same list" and "the nominal owner".

(b) Imposition and notification of capital gains tax;

After having purchased the instant real estate from the deceased in the amount of KRW 630 million from the deceased, the Defendant determined that the Plaintiffs obtained each transfer margin indicated in the column of "transfer margin of the attached tax assessment" by selling the said real estate before the purchase price of KRW 822,2640,000 for E, etc., and on August 1, 2013, the Defendant imposed and notified the Plaintiffs of each amount indicated in the "tax amount (including additional tax)" column of the same list as transfer income tax for the year 2009 (hereinafter referred to as the "disposition of this case").

C. Claim for tax appeal

The Plaintiffs filed a tax appeal against the instant disposition on October 29, 2013, which was dismissed on April 21, 2014.

[Ground of recognition] Facts without dispute, Gap 1, 2, 13, and Eul 6 (including virtual numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiffs' assertion

The defendant's disposition of this case is unlawful for the following reasons.

1) A sales contract concluded between the Plaintiffs and the Deceased was null and void due to the cancellation of agreement on September 2006, and the Plaintiffs did not sell the instant real estate before being registered.

2) Even if the Plaintiffs, even if they had sold the instant real estate unregistered,

A) The price received by the Plaintiffs is KRW 690 million in total, and KRW 100 million in that amount is returned by the Plaintiffs to the Deceased. As such, the transfer value of the instant real estate is KRW 590,12 million in total.

B) In light of the conclusion of a sales contract and the progress thereafter, there are extenuating circumstances for the Plaintiffs to have failed to complete the registration of ownership transfer regarding the instant real estate, and thus, it does not constitute subject to heavy taxation.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) Conclusion of the contract on April 7, 2004

A) On April 7, 2004, the Plaintiffs purchased the instant real estate from the Deceased in the amount of KRW 630 million, but paid to the Deceased KRW 150 million as the down payment on the day of the contract, and ② on June 16, 2004, KRW 480 million as the remainder payment (hereinafter “instant sales contract”).

B) The Plaintiffs paid to the Deceased KRW 150 million as the down payment on the day of the contract, and KRW 380 million as part of the remainder on June 16, 2004, respectively.

C) Meanwhile, the Plaintiffs determined their respective shares based on the instant sales contract to be 50% by aggregating Plaintiff A and Plaintiff D, and the remainder of the Plaintiffs except the above Plaintiffs to be 50%.

2) Progress after the conclusion of the instant sales contract

A) On June 21, 2004, the Deceased completed on June 21, 2004 the registration of creation of a mortgage on the instant real estate to the rest of the Plaintiffs except Plaintiff D with the maximum debt amount of KRW 400 million.

B) On July 29, 2004, the Deceased completed the provisional registration of the right to claim transfer of ownership on the instant real estate with respect to the Plaintiff DD on July 14, 2004, based on the promise to trade the instant real estate.

C) On August 8, 2006, the Deceased extended the payment date of the remaining KRW 100 million to December 30, 2004, which was not paid by the Plaintiffs, as seen earlier, on August 8, 2006. The Plaintiffs did not prepare documents necessary for the registration of transfer of ownership to the instant real estate and accept the registration procedure for transfer of ownership and pay the unpaid balance of KRW 100 million until September 8, 2006.

Postal service with content-certified intent was sent.

D) The instant real estate was designated as a land transaction permission zone around November 2002, but was released from the land transaction permission zone around January 2009.

3) Preparation of a sales contract dated July 15, 2009

A) On July 15, 2009, between the deceased and EE, the deceased sold the instant real estate to EE, etc. on a price of KRW 82,2640,000,000,000,000 on the day of the contract, and the EE, etc. prepared a sales contract to the effect that the deceased receives KRW 90,000,000 as the down payment on the day of the contract, and ② the remainder of KRW 73,264,00,000 as the remainder payment on August 7, 2009, and Plaintiff D signed and sealed it as the representative of

B) At the time of the preparation of the above sales contract, the Plaintiffs were the sellers, as seen earlier.

As to the instant real property, the provisional registration of the right to claim ownership transfer and the collateral security

In order to cancel the registration of establishment of a right before the bank loans to the bank, and the sale and purchase of the real estate of this case

agreement that Plaintiff D bears KRW 20 million among the transfer income tax incurred under this chapter.

A letter of commitment was prepared and delivered to EE.

C) On July 7, 2009, E issued and received ten copies of a cashier’s check with a face value of KRW 10 million at the National Bank’s office, and used them to pay the down payment amounting to KRW 90 million as stipulated in the above sales contract.

D) On August 18, 2009, the rest of the plaintiffs except the plaintiff Park Jong-ok prepared a receipt that received KRW 190 million on August 18, 2009 and issued it to EE.

E) On August 19, 2009, the Plaintiffs prepared a receipt that received KRW 4,2640,000 from the remainder and issued it to EE.

F) On August 28, 2009, E transferred the total of KRW 500 million to each deposit account opened in the name of the Plaintiffs.

[Ground of Recognition] A. 3, 4, 6 through 11, B. 2 through 4, 7 through 9 (including virtual numbers) without dispute

each entry, the purport of the whole pleading

D. Determination

1) Whether the plaintiffs sold the real estate of this case without registration

In light of the following circumstances acknowledged by the evidence and factual basis as seen earlier, it is reasonable to deem that the Plaintiffs sold the instant real estate before the registration thereof.

○ First, the Plaintiffs asserted that the instant sales contract was null and void due to the cancellation of agreement on September 2006, but there is no evidence to acknowledge it. Rather, on August 8, 2006, the deceased sent to the Plaintiffs a content-certified mail stating that the Plaintiffs would pay the remainder of KRW 100 million, which the Plaintiffs did not pay to the Deceased, until September 8, 2006, and accept the registration procedure for ownership transfer of the instant real estate.

○ At the time of the conclusion of the instant sales contract, the instant real estate was designated as a land transaction permission area, and the Plaintiffs seems to have preserved their rights, rather than completing the registration of ownership transfer concerning the instant real estate with the permission of the competent authorities, by completing the registration of ownership transfer concerning the instant real estate.

Since the instant real estate was cancelled in the land transaction permission zone after ○○, and the Plaintiffs did not pay KRW 100 million to the Deceased as part of the remainder, the Plaintiffs and the Deceased appears to have sold the instant real estate at KRW 82,264 million to E, etc. on July 15, 2009.

○, even though the above sales contract entered the deceased as a seller, and the plaintiff DD signed and sealed as the deceased’s agent, this is merely based on the fact that the plaintiffs did not pay KRW 100 million as part of the remainder to the deceased and completed the provisional registration of the right to claim a transfer of ownership and the registration of the establishment of a neighboring mortgage on the real estate in the future of the plaintiffs. Since the plaintiffs were in fact in a seller’s position, they prepared a letter of agreement execution and a receipt in their names and issued them to EE, and EE is also deemed to have paid all the proceeds stipulated in the above sales contract to the plaintiffs.

○ and the phrase that Plaintiff D bears KRW 20 million out of the transfer income tax generated in connection with the sale and purchase of the instant real estate, as the Plaintiffs had sold the instant real estate in cooperation with the Deceased, seems to be written in the above arsenal letter of agreement.

2) Whether the transfer value of the instant real estate was KRW 822,2640,000,000 for the purchase price, and whether the Plaintiffs obtained each transfer margin as stated in the column of “transfer margin of attached taxation disposition”

As seen above, it is reasonable to view that the plaintiffs had sold the real estate of this case in advance. Since the establishment of the above sales contract, the receipts and money was received between the plaintiffs and EE, and the registration of ownership transfer has been completed as stated in the "registration date of transfer" column of the attached list of real estate and the "registration titleholder" column of the "registration date of transfer" as to the real estate of this case, the plaintiffs are deemed to have received all the price of 82,2640,000 won as stipulated in the above sales contract. Therefore, it is reasonable to view that the transfer value of the real estate of this case was the above 82,2640,000 won, which is calculated according to their share ratio.

As to ○○, the Plaintiffs argued to the effect that the Plaintiffs returned KRW 100 million to the Deceased, which should be deducted from the transfer margin of the instant real estate. However, as seen earlier, it is only deemed that the Plaintiffs delivered the remainder that the Plaintiffs did not pay to the Deceased according to the instant sales contract to KRW 100 million.

3) Whether capital gains tax is subject to heavy taxation

The purport of the imposition of capital gains tax on the unregistered transferred assets is that a person who acquired assets transfers them without registering the acquisition at the time of transfer, thereby evading taxes, such as capital gains tax and acquisition tax, or preventing or preventing the speculation of real estate in accordance with the transfer of assets without paying any residual gains, etc. Accordingly, in acquiring the assets at the beginning, it is recognized that there is no purpose of speculation, such as tax avoidance through the transfer of assets or the acquisition of resale gains, etc. In other words, in cases where it is deemed that it is harsh to enforce the transferor the responsibility of failing to register the acquisition of the assets at the time of transfer to the contrary, in accordance with the proviso of Article 104(3) of the former Income Tax Act and each subparagraph of Article 168(1) of the former Enforcement Decree of the Income Tax Act, the transfer income tax of the transferred assets at the time of transfer is excluded from the unregistered transferred assets. In addition, the term "registration of assets acquired at the time of transfer under the provisions of the former Income Tax Act and the former Enforcement Decree of the Income Tax Act" cited as one excluded from the unregistered transferred assets.

As seen earlier, even though the Plaintiffs knew that the instant real estate was designated as a land transaction permission zone and its acquisition registration is impossible without obtaining permission from the competent authority, the Plaintiffs did not seem to have made any effort to obtain permission from the competent authority after concluding the instant sales contract, and the restriction on obtaining permission for a land transaction contract to transfer the right to the land located within the land transaction permission zone cannot be deemed as an inevitable case where the implementation of the registration procedure is legally impossible. In light of the above, it cannot be deemed that the Plaintiffs at the time of the transfer of the instant real estate constitutes an inevitable case where the Plaintiffs’ failure to register its acquisition.

○ Therefore, the instant real estate does not constitute assets excluded from unregistered transfer assets.

4) Sub-committee

Therefore, the defendant's disposition of this case, which was made on the same premise, is legitimate, and all of the plaintiffs' arguments disputing this is without merit.

3. Conclusion

Therefore, the plaintiffs' claims are all without merit, and they are so decided as per Disposition.

Related Acts and subordinate statutes

(1) The former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009)

§ 88. (Definition of Transfer)

(1) The term "transfer" in Article 4 (1) 3 and this Chapter means transfer, regardless of any registration or enrollment of assets.

In cases of onerous donation (excluding cases falling under the main sentence of Article 47 (3) of the Inheritance Tax and Gift Tax Act), where a donee takes over any obligation of a donor, the part equivalent to the amount of such obligation in the value of donation shall be deemed as the actual transfer for price of such property.

Article 104 (Rate of Transfer Income Tax)

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

3. Unregistered transferred assets: 70/100 of the tax base of transfer income;

(3) Unregistered transferred assets referred to in paragraph (1) 3 means those referred to in Article 94 (1) 1 and 2.

The term “transfer of assets” means that a person who acquires an mountain, transfers such assets without making a registration of acquisition thereof: Provided, That assets as prescribed by the Presidential Decree shall be excluded.

Article 110 (Final Return on Tax Base of Transfer Income)

(1) Any resident having any transfer income amount in the current year shall make a return on the tax base of transfer income to the chief of the tax office having jurisdiction over the place of tax payment from May 1 to 31 of the year following the current year (from May 1 to 31 of the year following the year in which the date of permission for land transaction contract falls, in cases falling under the proviso of Article 105 (1) 1) as prescribed by

(1) The former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010)

Article 168 (Scope, etc. of Assets Excluding Unregistered Transfer)

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

2. Registration of the acquisition of such assets at the time of transfer by the provisions of Acts or the decision of the court is not available;

able assets:

/ The National Land Planning and Utilization Act

Article 118 (Permission for Land Transaction Contracts)

(1) Parties who intend to enter into a contract to transfer or establish (including a contract for land transaction; hereinafter the same shall apply) the ownership or superficies (including the right aimed at acquiring the ownership or superficies) on the land located within an area subject to permission shall jointly obtain permission from the head of a Si/Gun/Gu, as prescribed by Presidential Decree. The same shall also apply to any modification to permitted matters.

(6) No land transaction contract concluded without obtaining permission under paragraph (1) shall take effect.