It does not constitute unregistered transfer because it does not register the transfer of ownership even after it has been actually acquired.

Since the approval for use of apartment was granted and the registration of ownership preservation was completed in the name of the selling company, it can be seen that the apartment itself was in the actual status of acquisition by paying most of the apartment price to the selling company, except for the portion of the sale price, even though the registration of ownership transfer was possible.

2013Gudan2863 Revocation of Disposition of Imposing capital gains tax

IsaA

Samsung Head of Samsung Tax Office

October 31, 2013

November 14, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of the capital gains tax of 2006 against the Plaintiff on May 1, 2012 is revoked.

1. Details of disposition;

A. On November 18, 2002, the Plaintiff: (a) sold an O-dong O-dong O-dong 7-18 BBD 102 Dong 2201 (hereinafter “the apartment of this case”) to the O-O-O, and paid the remainder of the remainder after excluding the OO-O-O-O-O-O-O-O-O-O-O-O-dong 102 Dong 2201 (hereinafter “the apartment of this case”); (b) on February 25, 2006, the Plaintiff transferred the apartment sales right (hereinafter “the sales right of this case”) to the O-O-O-O-O-O-O-O.

B. On April 24, 2006, the Plaintiff reported and paid the KRW OOOO of the transfer income tax on the transfer of the instant sales right. However, on May 1, 2012, the Defendant: (a) deemed that the said transfer of the sales right is a transfer of unregistered assets; and (b) rendered a disposition imposing KRW OOOO of the transfer income tax on the Plaintiff for the year 2006 (hereinafter “instant disposition”).

C. On August 8, 2012, the Plaintiff filed a request for a tax judgment against the Plaintiff, but received a decision of dismissal from the Tax Tribunal on November 1, 2012.

Facts that there is no dispute over recognition, Gap evidence 1 through 4, purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Although the Plaintiff did not acquire the apartment house of this case because it did not fully pay the sales price at the time of transfer of the right to sell the apartment of this case, it is unlawful to consider the transfer of the right to sell the apartment of this case as a transfer of unregistered assets, and to impose excessive heavy taxation on the resale of the right to sell the apartment of this case is contrary to the Constitution of the Republic of Korea, and there was no speculative purpose such as the purpose of tax avoidance or acquisition of resale by transfer of unregistered assets

B. Determination

(1) We first examine whether the instant transfer of the right to sell an unregistered asset is an unregistered asset transferor.

Article 104 (3) of the Income Tax Act provides that "unregistered transfer assets under Article 94 (1) 1 and 2 of the Income Tax Act mean that a person who acquires assets under Article 94 (1) 1 and 2 of the Income Tax Act transfers such assets without registering the acquisition of such assets, and Article 94 (1) 2 (a) of the Income Tax Act includes the right to acquire real estate at the time of the completion of the construction of the building and the right to acquire the land appurtenant thereto, so the right to sell the apartment of this case also constitutes "property that can become unregistered transfer assets". In addition, Article 88 (1) of the Income Tax Act provides that "transfer" means that the actual transfer of the assets is made at the cost of sale, exchange, investment in kind to a corporation, etc. regardless of the registration or enrollment of the assets concerned, regardless of the purport of the provision, the price of the assets in return for payment of the assets is paid at the price of the assets in return for the payment of the outstanding amount of payment (see, e.g., Supreme Court Decision 2009Du3698.

However, considering the following circumstances acknowledged by adding up the statements in Eul evidence as above, namely, ① the approval for use of the apartment of this case was made around December 22, 2005, and the registration for ownership transfer was completed in the name of the seller on December 29, 2005, and the Plaintiff was entitled to the registration for ownership transfer of the apartment of this case at the time of transfer of the right to purchase the apartment of this case; ② the Plaintiff paid the remainder excluding the smaller of the total sale price without implementing the registration procedure for ownership transfer; and there is no circumstance to deem that the Plaintiff could not pay the remainder in light of the Plaintiff’s financial status, such as the Plaintiff’s operation of the pharmacy, real estate leasing business, and his spouse’s operation of the mountain father and the hospital. Thus, the Plaintiff’s assignment of the right to purchase the apartment of this case constitutes a transfer of unregistered assets under the Income Tax Act. The Plaintiff’s assertion disputing this is without merit.

(2) Next, we examine whether the instant disposition violates the Plaintiff’s property right or is excluded from the subject of imposition of capital gains tax due to the Plaintiff’s lack of purpose of tax avoidance.

The purpose of imposing capital gains tax on assets transferred without registering the acquisition at the time of transfer is to restrain real estate speculation by transfer of assets without any tax evasion, such as capital gains tax and acquisition tax, or by resale without any payment for gains from transfer. Considering such legislative purpose and purport, and the need for public interest, the tax imposition, which is the means, within the necessary extent, is appropriate to achieve the purpose and necessary to achieve the public interest, and thus, it cannot be deemed as an unconstitutional system that infringes on property rights. In addition, in cases where the acquisition of the assets at first, it is deemed that the transferor did not have the purpose of speculation, such as the purpose of tax evasion through the transfer of assets or the acquisition of resale, and it is deemed that it is harsh to enforce the transferor on the responsibility that the transferor did not register the acquisition of the assets at the time of transfer, namely, it is excluded from the transferred assets in accordance with the cases under the proviso of Article 104(3) of the Income Tax Act and the subparagraphs of Article 168(1) of the Enforcement Decree

There is no reason to deem that the registration of acquisition was legally impossible, or that the transfer without registration of acquisition was made for the purpose of tax avoidance or acquisition of resale gains, etc., and thus, it is harsh to impose liability on the Plaintiff for failing to obtain registration. Rather, as seen earlier, the Plaintiff is deemed to have promoted tax benefits by failing to pay the remainder sufficiently remaining before the transfer of the sale right of this case and completing the registration of transfer of ownership under his own name even if it was possible to complete the registration of transfer of ownership under his own name. As such, each of the above arguments is contrary thereto

all of the requirements are without merit.

3. Conclusion

The claim is dismissed for lack of reason.