Suwon District Court 2010Guhap8042 ( November 29, 2010)

early 209 Heavy2140 (2010.03.09)

Capital gains tax may be levied even if transferred without permission for land transaction.

The registration of land purchase and sale contract and transfer of ownership is made for the purpose of excluding or avoiding the land transaction permission system, and is therefore null and void but the purchase price is not returned, and the ownership transfer registration remains without cancelling the registration, and thus, it is subject to capital gains tax because it is actually transferred.

2011Nu329 Revocation of Disposition of Refusal to Request Reduction or Correction of Transfer Income Tax

XXSOOCO species:

The director of the tax office

Suwon District Court Decision 2010Guhap8042 Decided November 29, 2010

September 22, 2011

November 10, 201

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant's disposition of refusal to reduce or correct capital gains tax against the plaintiff on January 30, 2009 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. The registration was converted into 00-0 on April 6, 2006, 00-0, 00-0, 000, 000-0, 000-0, 000-0, 000-0, 000-0, 000-00, 000-00, 000-00, 000-00, 000-00, 000-00, 000-00, 000-00, 000-0, 000-0, 000-00, 00-00, 00-00, 00-00, 000-0, 000-0, 000-0, hereinafter referred to as “the instant land” was divided into “the Land Transaction Agreement” under the National Land Transaction Act (hereinafter referred to as “Land Transaction Agreement”).

B. On December 21, 2004, the Plaintiff concluded a sales contract for KRW 5,080,000 with respect to the instant land with the representative director of the OO Construction Co., Ltd. (hereinafter “OO Construction”).

C. On October 1, 2005, based on the above sales contract on September 5, 2002, the Plaintiff completed the registration of transfer of ownership of the instant land in the future, in the name of KimB, KimCC, DaD, the largest leD, leF, leF, KimG, HaK, EM, EM, EM, EM, 15419/502, KimB 50902, 3241/3241, 32402, 509, 502, 509, 502, 147/140, 507/40, 509, 509, 147/50, 509, 504, 509, 509, 504, 509, 509, 509, 509/200, 509, 294G294054,52505.

D. On December 19, 2005, the Plaintiff voluntarily reported and paid capital gains tax of KRW 1,026,447,050 following the transfer of the instant land and the relevant land of the Gupo-Eup in Gwangju-si 00-0, 000, and 00-00.

E. However, on September 1, 2008, the Plaintiff filed a request for correction pursuant to Article 45-2(1) of the Framework Act on National Taxes with the purport to demand refund of KRW 333,285,205, out of the transfer income tax that was voluntarily paid by the Defendant after deducting the irrecoverable amount from the transfer value, on the ground that the remaining amount of KRW 1,469,752,830 of the land of this case was impossible to recover under the sales contract of this case. On January 30, 2009, the Defendant rejected the above request for correction on the ground that the Plaintiff’s assertion on January 30, 2009 cannot be deemed to have become impossible to recover the balance of the land of this case, and that the transfer income cannot be realized.

F. On April 30, 2009, the Plaintiff filed an appeal with the Tax Tribunal. On July 13, 2009, the date of the sales contract on the registry of the instant land stated on September 5, 2002, which was before the designation as the land transaction permission zone, but the actual date of the transfer is on December 21, 2004, and thus, the instant sales contract is null and void due to the violation of the land transaction permission system and thus, the entire amount of the transfer income tax voluntarily paid should be refunded on the ground that it does not fall under the transfer of assets.

G. On March 9, 2010, the Tax Tribunal dismissed the appeal on the grounds that the grounds for the above request for correction are groundless.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1 to 3, Gap evidence 4-1, 2, Gap evidence 12, Eul

Each entry of evidence Nos. 1 and 3 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The date and time of the instant sales contract was actually executed on December 21, 2004. However, in order to exclude the procedure for permission for the instant land transaction contract, the Plaintiff and OO Construction completed the procedure for registration of ownership transfer of the instant land without undergoing the procedure for permission for the land transaction contract after falsely preparing the date and time of the instant contract on September 5, 2002. In addition, in light of the fact that the instant sales contract constituted the transfer of ownership of the instant land, the Plaintiff’s refusal of the instant disposition is unlawful since the Plaintiff’s voluntary payment of the transfer income tax did not constitute the transfer of the instant land, on the grounds that the transfer of the instant land constitutes the invalidation of the transfer of the instant land due to the lack of the procedure for permission for the land transaction contract.

B. Relevant statutes

It is as shown in the attached Form.

C. Facts recognized

The following facts are not disputed between the parties, or may be acknowledged by taking into account the whole purport of the pleadings in each entry of Gap evidence Nos. 1 through 3, Gap evidence No. 4-1, 2, Gap evidence No. 5-8, Gap evidence No. 10-1, 2, Gap evidence No. 12-41, and Eul evidence Nos. 1 through 3.

(1) ThisA, the representative of the Oconstruction, who purchased the instant land from the Plaintiff, tried to acquire the proceeds from resale by dividing the instant land to a third party without registering it in the name of OO construction in the state of payment of down payment and intermediate payment.

(2) On February 21, 2005, the Plaintiff revised the buyer column of the sales contract of this case from “A” to “B” to “B” to “B” and “B” to “B” et al. on December 21, 2004.

(3) AO Construction divided the instant land into several shares and reselled the instant land unregistered to KimB, etc.

(4) On October 2005, Park PP, the former representative of the Plaintiff, prepared a false sales contract, stating the date and time of the instant sales contract to September 5, 2002, prior to the designation of an area subject to permission, in order to complete the registration of transfer without undergoing the procedures for permission for a land transaction contract under the National Land Planning and Utilization Act with respect to the instant land at the request of Leeman.

(5) On October 11, 2005, the Plaintiff completed the registration of transfer of ownership of the instant land in the future, such as the KimB, who again acquired shares in the instant land from OO Construction and O Construction on the grounds of sale and purchase as of September 5, 2002, based on the aforementioned false sales and purchase contract.

(6) 농업협동조합중앙회는 2005. 10. 11. 이 사건 토지에 대한 OO건설 및 김BB 등의 지분들에 관하여 근저당권설정등기를 마쳤는데, 피담보채권을 변제받지 못하자 임의경매신청을 하여 위 토지들에 대한 경매절차(수원지방법원 성남지원 2006타경00000)가 진행되었고, 홍QQ이 2008. 6. 4. 이 사건 토지를 경락받아 그 소유권을 취득하였다.

(7) 원고는 2011. 3. 8. 이 사건 토지 중 광주시 오포읍 XX리 000-00, 같은 리 000-00, 같은 리 000-00, 같은 리 000-00에 대하여 위 토지들에 관한 OO건설 및 김BB 등의 지분이전등기가 무효인 이상 그에 터 잡은 농업협동조합중앙회 명의의 근저 당권설정등기도 무효이고, 이 근저당권이유효함을 전제로 이루어진 위 경매절차도 무효이며, 그에 따라 차례로 이루어진 홍QQ 명의의 소유권이전등기도 무효이므로 홍QQ은 원고에게 진정명의회복을 원인으로 한 소유권이전등기절차의 이행을 구하는 소송을 서울중앙지방법원 2011가단00000호로 제기하였으나, 위 법원은 2011. 10. 28. 원고의 청구가 신의성실의 원칙에 반한다는 이유로 원고의 청구를 기각하였다.

(8) Meanwhile, on December 10, 2009, thisA was sentenced to five years in prison at Seoul High Court (Seoul High Court 2010No00 case) on July 2, 2010, to five years in prison (Seoul High Court 2010No00 case) on the grounds of criminal facts, etc. for which the instant sales contract was concluded without obtaining land transaction permission in the Sungnam branch of Suwon District Court.

D. The validity of the instant sales contract without obtaining permission for land transaction

(1) Legal principles

A contract for land transaction within a permitted area under the National Land Planning and Utilization Act, which is in a flexible invalidation without permission for land transaction, is null and void when both parties clearly express their intent of refusing to perform the duty to cooperate or not to file an application for permission, as well as when both parties clearly express their intent not to file an application for permission. In cases where a person who has entered into a contract for real transactions indicates a purchaser under the contract in a manner that adds an unspecified person to the name of the actual contractor (i.e., adding an “non-party 0” to the name of the actual contractor), even if the actual supplier, at the time of entering into the contract, has an intention of internal deliberation to add a person who has contributed to some funds at the time of the formation of the contract deposit, a third party’s investor, etc. who is anticipated to be “non-party 0” to a joint purchaser as “non-party 0” in the process of paying the future intermediate payment and balance, if the seller did not notify the seller of the name falling under “non-party 0” at the time of entering into the contract or subsequent cancellation of agreement, and there is no other objective situation between the seller’s.

In addition, where a separate sales contract was prepared before the date of a sale contract was designated and publicly announced as a regulatory zone to exclude land transaction permission, the said sale contract was not premised on obtaining land transaction permission, namely, a contract which is finally null and void since the time when the contract was entered into (see, e.g., Supreme Court Decisions 92Da44671, Nov. 23, 1993; 2009Da96328, Jun. 10, 201). If land within a land transaction permission zone was sold again from the first seller without land transaction permission to the last buyer again from the middle buyer, the parties to each sale contract are required to obtain permission for land transaction as to each of their respective sales contracts, and even if there was an agreement between the said parties to have completed a registration of ownership transfer in the future, the first buyer and the first buyer cannot be deemed to have reached an agreement between the parties to the sale contract and the first buyer on the premise that the first sale of real estate was null and void without any agreement between the last buyer and the first buyer.

(2) Determination

In light of the above legal principles, although the date and time of concluding the instant sales contract was actually December 21, 2004, in order to exclude the procedure for permission for the instant land transaction contract by the Plaintiff and OB, the date and time of the contract was falsely prepared on September 5, 2002, retroactively from September 5, 2002, and the procedure for permission for the land transaction contract was completed without going through the procedure for permission for the land transaction contract. ② The Plaintiff completed the registration for transfer of ownership of the instant land in the future, such as KimB, who acquired shares in the instant land again from OO construction, and this constitutes an intermediate omission registration. In light of the above, the Plaintiff’s sales contract for the instant land and the registration for transfer of ownership pursuant thereto were separated for the purpose of excluding or avoiding the land transaction permission system, which is a mandatory law, and thus constitutes an inevitable invalidation.

E. Whether capital gains tax pursuant to the sales contract of this case is imposed invalid

(1) Legal principles

The main text of Article 88(1) of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006; hereinafter referred to as the "former Income Tax Act") provides that "transfer" in Article 88(1)3 of the former Income Tax Act means that the actual transfer of an asset is made at a price due to sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of the asset, and the transfer of the asset is made at a price due to the sale, exchange, investment in kind in the corporation, etc., regardless of the registration or enrollment of the asset, and does not require that the contract of the sale, exchange, investment in kind, etc. (hereinafter referred to as "sale, etc.") which is the cause of the transfer of the asset at a price is legally valid. Meanwhile, as the sale, etc. is made for the purpose of excluding or avoiding the land transaction permission as stipulated in the National Land Planning Act from the beginning, it is unlawful or unlawful, and thus, between the parties, even if the contract becomes null and void, it cannot be imposed on the seller's profits accruing from transfer.

Considering the above, in a case where a sale of land within a land transaction permission zone as prescribed by the National Land Planning and Utilization Act and a transfer registration based on a gift was completed for the purpose of excluding or evading the land transaction permission even if the purchase price was made, or where a purchaser purchased the land within a land transaction permission zone as if the purchase price was made without completing the land transaction registration without completing the land transaction permission, but the first seller purchased the land to a third party and received the purchase price and completed the registration of transfer with the land transaction permission as if the first seller directly sold the land to a third party, it is reasonable to view that the transfer income tax is subject to the exception that the seller, etc. has income from the transfer of the property if the seller or the intermediate buyer owns the land without cancelling the registration of transfer and the third party without returning it to the buyer or the third party (see, e.g., Supreme Court en banc Decision 2010Du23644, Jul. 21, 2011).

(2) Determination

위와 같은 법리에 비추어 이 사건을 보건대, 원고의 이 사건 토지에 대한 매매계약 및 그에 따른 소유권이전등기는 강행법규인 토지거래허가제도를 배제하거나 잠탈할 목적으로 이루어진 것으로서 당연 무효에 해당하는 점은 앞서 본 바와 같고, 여기에 ① 원고는 이 사건 토지의 소유권이전등기를 마친 2005. 10. 11. 이후 6년이 지난 당심 변론종결일 당시까지도 이 사건 토지의 매매대금을 OO건설 등에게 반환하지 않고 그대로 보유하고 있는 점, ② 이 사건 토지는 원고로부터 OO건설 및 김BB 등으로, OO건설 및 김BB 등으로부터 홍QQ으로 각 소유권이전등기가 경료되어 그 소유권 이전등기가 마쳐진 채 말소되지 않고 남아 있는 점 등을 더하여 보면, 원고가 이 사건 토지를 매매한 것은 이 사건 토지를 사실상 이전함으로써 양도한 것에 해당하므로 예외적으로 자산의 양도로 인한 소득이 있다고 보아 양도소득세의 과세대상이 되는 경우에 해당한다고 보아야 할 것이다.

원고는 이에 대하여, 원고가 2011. 3. 8. 이 사건 토지 중 광주시 오포읍 XX리 000-00, 같은 리 000-00, 같은 리 000-00, 같은 리 000-00에 대하여 최종 소유자인 홍QQ을 상대로 진정명의회복을 원인으로 한 소유권이전등기절차의 이행을 구하는 소송을 제기하였으므로 양도소득세 과세대상이 되지 않는다고 주장한다.

살피건대, 원고가 2011. 3. 8. 위 토지들에 대한 OO건설 등의 지분이전등기가 무효인 이상 그에 터 잡은 농업협동조합중앙회 명의의 근저당권설정등기도 무효이고, 이 근저당권이유효함을 전제로 이루어진 위 경매절차도 무효이며, 그에 따라 차례로 이루어진 홍QQ 명의의 소유권이전등기가 무효이므로, 홍QQ은 원고에게 진정명의회복을 원인으로 한 소유권이전등기절차의 이행을 구하는 소송을 서울중앙지방법원 2011가단00000호로 제기한 사실, 위 법원은 2011. 10. 28. 원고의 청구가 신의성실의 원칙에 반한다는 이유로 기각한 사실은 앞서 본 바와 같고, 또한 국세기본법 제45조의2 제2항(위 조항은 1994. 12. 22. 법률 제4810호로 개정되면서 신설되었다)은 과세표준 신고서를 법정신고기한 내에 제출한 자 또는 국세의 과세표준 및 세액의 결정을 받은 자는 법 소정의 사유가 발생한 때에는 통상적 경정청구기간에 불구하고 그 사유가 발생한 것을 안 날로부터 2월 이내에 결정 또는 경정을 청구할 수 있다고 하여 후발적 경정청구를 규정하고 있는바, 원고가 주장하는 경우는 위 국세기본법 제45조의2 제2항에서 규정하고 있는 경정청구의 방법으로도 구제가 가능하다고 할 것이므로, 원고의 이 부분 주장도 이유 없다.

F. Sub-committee

Therefore, the defendant's disposition of this case on the same premise is legitimate. Ultimately, the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is with merit and the plaintiff's claim is dismissed. It is so decided as per Disposition.