Daegu High Court 2003Nu1944 (204.09)

Where the property is expropriated without obtaining permission for a land transaction contract after the conclusion of a transaction contract;

If the registration of ownership transfer was not completed due to a lack of permission for a land transaction contract, but the purchase price is paid in full, and the transfer of unregistered assets is made and the price is received, it constitutes "transfer" subject to imposition of capital gains tax as the transfer of unregistered transferred assets.

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

We examine the grounds of appeal.

1. As to the assertion that capital gains tax is not subject to taxation

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its holding, and determined that the plaintiff's purchase of the land of this case within the zone where land transaction contract was permitted for the land transaction contract under the Act on the Utilization and Management of the National Land, Utilization and Utilization (repealed by Act No. 6655, Feb. 4, 2002, according to the National Land Planning and Utilization Act), but did not complete the registration of ownership transfer due to the relationship that was not permitted for the land transaction contract from the competent authority, but did not complete the registration of ownership transfer, the purchase price was paid in full, and the property tax was paid. Since the land of this case was expropriated by the land of this case through the Korea Land Development Corporation, it was transferred without registration and received the full amount of compensation for such transfer, this constitutes the transfer subject to the imposition of capital gains tax.

In light of relevant laws and records, we affirm the above recognition and judgment of the court below as just, and there is no error of law such as misunderstanding of legal principles as otherwise alleged in the ground of appeal.

The Supreme Court precedents cited in the ground of appeal by the plaintiff are different from the case, and it is not appropriate to invoke the case.

2. As to the assertion that the transfer of unregistered assets constitutes assets excluded from transfer

The purport of Article 6-2 and Article 70 (3) of the former Income Tax Act that the person subject to transfer income tax on assets transferred without registering their acquisition is to avoid transfer income tax and acquisition tax, or to restrain and prevent real estate speculation, etc. based on the transfer of assets by transfer without paying the remaining amount of transfer income tax and acquisition tax, etc. Therefore, in acquiring the assets first, it is recognized that there is no objective of speculation, such as tax avoidance through transfer of assets or acquisition of resale through transfer of unregistered assets, and in other cases, it is deemed that it is harsh to enforce to the transferor the responsibility which did not register the acquisition of the assets at the time of transfer, in other words, if there is an inevitable circumstance, it is deemed that the transfer income tax should be excluded from transfer of assets in accordance with any of the subparagraphs of Article 121-2 of the former Income Tax Act (amended by Presidential Decree No. 1467, Dec. 31, 1994; Presidential Decree No. 7014, Feb. 19, 200>

According to the above legal principles and the facts duly established by the court below and the records, the plaintiff acquired the land in this case without obtaining permission for a land transaction contract as the relation designated as the land transaction contract permission area, and it was impossible to register the acquisition without obtaining such permission, and there was no trace of obtaining such permission until five years have passed since the land in this case was expropriated. The restriction to obtain permission for a land transaction contract for the transfer of the land in the land within the land transaction permission area does not constitute a case where the execution of the registration procedure for the acquisition is legally impossible. Thus, the mere fact that the land in this case was expropriated regardless of the plaintiff's intention does not constitute an inevitable case where the plaintiff failed to register the acquisition at the time of transfer of the land in this case. Thus, it cannot be viewed that the land in this case is excluded from the unregistered transferred asset under the proviso of Article 70 (7) of the former

In the same purport, the court below held that the disposition of this case is legitimate, since the land of this case constitutes unregistered transfer assets under Article 70 (3) 4 of the former Income Tax Act, and there is no violation of law such as misunderstanding of legal principles as to assets excluded from unregistered transfer, as otherwise alleged in the ground of appeal.

3. As to the assertion of double taxation

The new facts alleged in the court below's decision that were not alleged in the court below's decision can not be a legitimate ground for appeal unless they are the matters to be examined ex officio (see, e.g., Supreme Court Decisions 86Nu325, Feb. 24, 1987; 86Nu325, May 26, 1995; 94Nu7010, Dec. 12, 1997; 97Nu1235, etc.). The defendant deemed that the above right ○○ was transferred the land of this case to the Korea Land Development Corporation, and that the disposition of this case was unlawful since the defendant imposed and collected transfer income tax on the above right ○○ constitutes double taxation, since the plaintiff's assertion that the disposition of this case was not a new fact as alleged in the ground for appeal by the court below, it cannot be a legitimate ground for appeal, and as long as the transferor of the land of this case is not the plaintiff, the transferor, but the transferor of the real transferor, the taxpayer of this case, thus imposing transfer income tax.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.