Judgment of facts about the time of transfer

Since it is confirmed that the balance has been settled prior to the date of receipt of registration due to financial transaction evidence, etc., the disposition that was imposed after the date of receipt of registration is illegal.

Article 98 of the Income Tax Act: Time of Transfer or Acquisition

1. The Defendant’s disposition of imposition of capital gains tax of KRW 86,320,80 against the decedent’s decedent’s gambling ○ on September 1, 2005 is revoked.

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

Purport of Claim

The same shall apply to the order.

1. Details of the disposition;

A. An gambling, ○○, while residing in the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, ○○○○○○○○○○○, and 3,818 square meters (from next to to, “the instant land”). Around August, 200, her land was self-deed for not less than eight years.

B. On August 5, 2003, Park○ entered into a contract with Lee○-○ to sell the instant land for KRW 780,000,000,000 for the purchase price, and after receiving the intermediate payment and the remainder, the procedure for the registration of ownership transfer was completed on February 14, 2005 under the name of Lee○-○.

C. On May 30, 2005, Park○ reported the transfer income tax of the instant land to the Defendant. On the premise that the time of transfer of the instant real estate was on January 8, 2004, the date of the settlement of the balance, the transfer value and the acquisition value based on the standard market price was calculated, and thereafter, reported that there was no transfer income tax to be paid according to the reduction or exemption of the transfer income tax of self-Cultivating farmland

D. On September 1, 2005, the Defendant issued the instant disposition imposing capital gains tax as stated in the purport of the claim to Park○ on the following grounds.

(1) Around January 8, 2004, 200 million won was loaned by ○○○ to ○○○○○ to 2.5 million won, but ○○○, the buyer, took over the above loan on April 27, 2005. As such, the settlement date of the above sales and purchase contract shall be deemed to be April 27, 2005. Since the transfer registration of ownership in the name of ○○○ on the instant land was made on February 14, 2005, the transfer date of the instant land is February 14, 2005, which is the date of receipt of the transfer registration of ownership.

(2) However, since the Japanese land of this case was designated as an speculative area on February 26, 2004, prior to the above transfer date, the transfer price should be calculated based on the actual transaction price pursuant to the proviso of Article 96(1) proviso of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005) Article 6-2 of the former Income Tax Act. If so, Park○ shall pay the transfer income tax stated in the purport of the claim.

E. On January 4, 2006, Park○-○ had died on January 4, 2006 when dissatisfied with the instant disposition and brought an administrative appeal to the National Tax Tribunal. The Plaintiffs succeeded to and went through the pre-trial procedure, and then filed the instant lawsuit.

[Ground of recognition] Facts without dispute, Gap 1 through 3 (including paper numbers), Gap 13, Eul 1 and 2, and the purport of the whole pleadings

2. Determination on the legitimacy of each of the dispositions of this case

A. The plaintiff's assertion

The plaintiffs, ① on the document, ○○○ received a loan of KRW 2,50,000 from ○○○○○○ on January 8, 2004. However, in fact, ○○○○ was a loan made by ○○○○○ upon obtaining the loan, and ○○○ was an agreement that ○○○ shall take over all of the above loan obligations and pay interest to ○○○○○○ upon completing the procedure for ownership transfer registration. This ○○○ transferred interest to ○○○○○’s account every month. After completing the procedure for ownership transfer registration, the details of acquiring the above loan obligations have been proved, and ② even if the balance was settled on January 8, 200, 204, ○○○○○ and ○○○○ had tried to build an concentrate on the land of this case located within the development-restricted zone, and it is possible to transfer the land of this case only under the name of ○○○○○’s sales contract, and thus, the transfer of the land of this case remains 200.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) The issues of the instant case

Whether the time of the transfer of the instant land is prior to the date of designation of the speculative area ( February 26, 2004) with respect to the whole land of this case, and whether the disposition of this case, which imposed capital gains tax depending on whether it is subsequent to or after, depends on whether it is legitimate.

(2) Facts of recognition

㈎ 원고들의 피상속인 박○○은 2003. 8. 5. 이○○와 사이에 이 사건 토지를 대금 7억 8천만 원에 매도하기로 하고, 다음과 같은 내용의 특약을 맺었다.

(i)Method of payment;

Of the down payment of 80 million won, 10 million won is paid on August 5, 2003, and 70 million won is paid on August 18, 2003, and 150 million won from the intermediate payment of 300 million won is paid on September 25, 2003, and 1.5 million won from the intermediate payment of 300 million won is paid on October 25, 2003, and 1.5 million won from the remainder shall be paid on December 10, 2003, and 2.5 million won shall be treated until December 20, 2003.

Sheed Terms and Conditions

(1) The sales price shall include 20 million won as premiums for facilities related to the same plant and plant.

(2) A loan of KRW 250,000 shall be financed by a seller from ○○○○○○○○○, and shall be disposed of by December 20, 203 (Provided, That the buyer shall bear interest thereon).

(3) The purchaser shall bear all expenses incurred in relation to facilities related to animals and plants.

㈏ 박○○은 위 계약에 따라 계약금 8천만 원 중 1천만 원은 당일, 나머지 7천만 원은 2003. 8. 18.에 각 지급하였고, 중도금은 2차에 걸쳐 2003. 9. 25. 및 2003. 10. 25. 각 1억 5천만 원을 지급하였으며, 잔금 1억 5천만 원은 2003. 12. 10.에 지급하였다.

㈐ 또한 박○○은 위 계약의 특약사항 제②항에 따라 2004. 1. 8. ○○농협으로부터 그 명의로 2억 5천만 원의 대출을 받았고, 매수인 이○○는 위 대출금채무 인수 및 이자부담 약정에 따라 2004. 1. 15. 이자 명목으로 792900원을 송금한 것을 비롯하여 2005. 3. 14.까지 매달 박○○의 계좌에 150만 원 내외의 위 대출금채무의 이자를 송금하였다.

㈑ 한편 박○○은 위 계약의 특약사항 제①, ③항에 따라 2003. 11. 12. ○○시장으로부터 이 사건 토지 지상에 동ㆍ식물 관련시설을 건축하는 내용의 건축허가를 얻었고, 이○○는 2004. 4. 6. 김○○과 사이에 위 시설의 건축에 관한 도급계약을 체결하였다.

㈒ 이○○는 위 동ㆍ식물 관련시설이 완공되자 이 사건 토지를 목장용지와 도로등 3필지의 토지로 분필하였고, 2005. 2. 14. 위 3필지 토지에 관한 소유권이전등기절차를 모두 마쳤으며, ○○농협의 조합원이 된 이후인 2005. 4. 27. 박○○으로부터 위 대출금 채무를 인수하였다.

[Reasons for Recognition] Each entry of Gap evidence Nos. 4 and 12 (including each number), witness Lee ○○'s testimony, the purport of the whole pleadings

(3) Determination

The above facts are as follows. ① ○○○ intended to purchase the instant land and install facilities related to the same plant on the ground, and the permission was possible only in the name of ○○○, a farming business entity. ② ○○○, the purchaser of the instant building after obtaining a building permit for the above plant and plant facilities from ○○○○○○○○○, was in charge of the construction of the said building. Accordingly, the procedure for the registration of ownership transfer of the instant land seems to have been delayed after the construction of the said building. ③ A loan was made under the name of ○○○○ on January 8, 2004, which was after the remainder payment due to the special terms and conditions of the sales contract on the instant land, but the actual borrower should be seen as ○○○ upon considering the following circumstances:

Thus, the defendant's disposition of this case based on the premise that the land of this case was transferred after the date of designation of the speculative area is illegal.

3. Conclusion

Therefore, under the premise that the disposition of this case is illegal, the plaintiffs' claims seeking the revocation are accepted on the grounds of all the claims. It is so decided as per Disposition.