National High Court Decision 2008west1066 ( October 08, 2008)

Whether or not a person acts as a broker without registration, or has transferred unregistered assets;

Although criminal punishment was imposed by the act of acting as a broker without registration, it is reasonable to view that the transfer of unregistered assets is a transfer of unregistered assets, considering that: (a) the Plaintiff had worked for a planning real estate business entity; (b) the transaction process was led by the Plaintiff’s responsibility and calculation, unlike ordinary real estate intermediaries; and (c) the amount of brokerage commission is excessive and difficult to be considered as a mere brokerage commission; and

The contents of the decision shall be the same as attached.

Article 94 (Scope of Transfer Income Tax)

1. The Defendant’s imposition disposition of KRW 110,693,950 against the Plaintiff on February 1, 2008 shall be revoked.

2. The plaintiff's remaining claims are dismissed.

3. Two minutes of the lawsuit shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

The Defendant’s imposition of KRW 110,693,950 for the Plaintiff on February 1, 2008 and the imposition of KRW 70,214,480 for the transfer income tax for the year 2006, respectively, shall be revoked.

1. Details of the disposition;

A. (1) On August 11, 2003, the ownership transfer registration was completed in the name of Nonparty 1-1 on August 11, 2003 with respect to the land of 682-23 forest land and 992 square meters (hereinafter “the land of this case”). On March 7, 2006, the ownership transfer registration was completed on the ground of sale on February 9, 2006 under the name of Nonparty 1’s maximum right, and (2) on August 11, 2003, the ownership transfer registration was completed in the name of Nonparty 1-24 forest and 661 square meters (hereinafter “the land of this case”) on August 11, 2003, the ownership transfer registration was completed in the name of Nonparty 2, Nonparty 4, 2006, the ownership transfer registration was delayed on April 14, 2006.

B. (1) The registration of ownership transfer was completed on August 1, 2004 with respect to 40 m20-1 forest land of 1290 m20 m20 m20 m20 m20 m20 m20 m20 m200 m200 m200 m20 m28 m28 m20 m200 m204. 11.11. 2005 m20 m20 m28 m20 m20 m28 m20 m204 m20 m20 m27 m28 m204 m20 m28 m200 m28 m200 m27 m204.

C. On February 1, 2008, the Defendant rendered a decision on February 1, 2008 to notify the Plaintiff of the acquisition price of KRW 10,693,950, 206 as transfer income tax for the year 2005 as transfer income tax for the year 10,693, 950, 206, 208 as transfer income tax for the year 2005, the transfer price of KRW 2-1, 2-2, 2-3, and 2-4 to the Plaintiff’s deposit account. Since the acquisition price of KRW 2-1, 2-2, 2-3, and 2-4, which appears to be the purchaser of each of the above lands, was deposited into the Plaintiff’s deposit account. Thus, the Defendant appears to have transferred each of the above lands to the Plaintiff under his responsibility and calculation.

D. On April 2, 2008, the Plaintiff filed an adjudication seeking the revocation of the instant disposition with the Tax Tribunal, but was dismissed on October 8 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, Gap evidence 4-1 to 7, Eul evidence 1-1 and Eul evidence 1-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) As to the sale and purchase of land of this case No. 1-1, 1-2, 1-3

As to the land No. 1-1 of this case as an unregistered intermediary, the Plaintiff’s sales contract between the seller’s ○○ and the seller’s ○○○○, each of which constitutes a sales contract with respect to the land No. 1-2 of this case, and the sales contract between the seller’s ○○ and the purchaser’s ○○, each of which acts as a broker for the sales contract between the seller’s ○○ and the seller’s ○○, but otherwise, the Plaintiff considered that the Plaintiff purchased each of the above land from the seller’s ○, the seller’s ○, and sold it to the ○○, the largest ○, and 480 won for the transfer income tax of this case for the year 2006.

(2) As to the sale and purchase of land in the instant case No. 2-1, 2-2, 2-3, and 2-4

(A) At the time of the Plaintiff’s purchase of the instant land No. 2-1 in the name of the largest shareholder, ○○-2, ○○-2, ○-3, and 2-4, respectively, purchased the instant land with the Plaintiff, and ○○-2, ○-3, and 2-4, respectively. However, the imposition of KRW 110,693,950, the transfer income tax for the year 205, on which the Plaintiff reported the sale of each of the said land to the largest shareholder, ○-10,693,950, on each of the above lands, was unlawful, on each of the above lands, due to the circumstances where it is impossible to immediately obtain the registration of ownership transfer in the land transaction permitted zone.

(B) Furthermore, even if the Plaintiff purchased the instant land Nos. 2-1, 2-2, 2-3, and 2-4 from YOsan and sold it to ○○○, ○○○○○, and ○○-4 in an unregistered state, each of the said land was included in the land transaction permission zone, and the said land was not subject to the land transaction permission or the permission zone was not cancelled until February 1, 2008, which was at the time when the transfer income tax for the year 2005 was imposed. Thus, even though the said unregistered resale was not subject to the imposition of transfer income tax because it is difficult to view it as a transfer of valid assets, the disposition imposing KRW 10,693,950 for the transfer income tax for the year 205, which was otherwise reported, is unlawful.

(b) Related statutes;

It shall be as shown in the attached Form.

(c) Fact of recognition;

(1) As to the land No. 1-1 of this case, the date of the conclusion of the sales contract was set up on February 9, 2006; the transferor was set up a sales contract with the maximum of KRW 90,000,000 (the contract deposit amount of KRW 9,000,000, the balance of KRW 81,000,000). However, the above sales contract was paid by the transferor Park Byung-hee to the Plaintiff’s bank account in the manner of receiving KRW 81,00,000 from the Plaintiff’s new bank account on February 9, 2006; and the transferee’s maximum rule transferred KRW 138,00,000,000 to the Plaintiff’s bank account, not the transferor.

(2) As to the instant land No. 1-2, the date of the conclusion of the sales contract was set up on April 11, 2006; the transferor’s ○○, the transferee’s ○○, the 105,000,000 won (a contract deposit amount of KRW 5,000,000; any balance of KRW 100,000,000). However, the said sales contract was set up in a manner that the transferor paid KRW 105,00,000 to the Plaintiff’s Ha○ Bank account, and the transferee ○○ transferred KRW 136,50,000,000 in the name of the Plaintiff’s Ha○ Bank account under the name of the Plaintiff ○○○, the Plaintiff ○○, who was the birth, to the Plaintiff’s national bank account, other than the transferor ○.

(3) As to the instant land No. 1-3, the date of the conclusion of the sales contract was set up on April 11, 2006; the transferor’s annual order was set up; the transferor’s order was set up 67,500,000 won (contract deposit amounting to KRW 15,000,000; the remainder KRW 52,000,000). However, the said sales contract was paid by the transferor’s transfer to the Plaintiff’s bank account was paid KRW 67,50,000 from the Plaintiff’s bank account; the transferee’s order transferred KRW 73,520,000 exceeding the above sales amount to the Plaintiff’s bank account, not the transferor’s bank account.

(4) On August 1, 204, the Plaintiff purchased 2-1, 2-2, 2-3, 200 won of the instant maximum debt amount, and sold 50,000 won of the instant land to Nonparty ○○-1 (the maximum debt amount of 00,000 won for the instant 2-1,000 won for the instant land; KRW 78,00,000 for the instant land; KRW 2-2,00 for the 0-1,00 won for the instant land; KRW 70,000 for the 0-1,000 won for the instant land (the number of 0,000 won for the instant 2,00 won for the 0-1,000 won for the instant land; KRW 78,00,000 for the 0-1,000 for the 2,000 won for the instant land; and KRW 2-3,000 for the 2,000 for the instant land

(5) On the other hand, ○○○○○○○○○○○○ (spouse) entered into the above 10-1 brokerage contract with the Plaintiff on suspicion of an act of free registration, etc., the Plaintiff tried to sell the above 10-1 brokerage contract with the Plaintiff on November 29, 2007 at the Seoul Southern District Court Decision 2006DaMa3112, 2007 Godan289 (Consolidated), 2007 Godan939 (Consolidated), defamation, fraudulent, private documents, uttering of falsified electronic records, false entry into private electronic records, licensed real estate agents, violation of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act; 10-1 brokerage contract with the said 0-1 brokerage contract with the Plaintiff on the other hand, and 200-1 brokerage contract with the said 0-10-1 brokerage contract with the Plaintiff on the other hand, 200-1 brokerage contract with the Plaintiff on the other hand.

[Reasons for Recognition] Evidence A(including paper numbers), Evidence B(1) to 25 (including paper numbers)

each entry, the purport of the whole pleading

D. Determination

(1) Therefore, first of all, we examine whether the Plaintiff acted as a broker for registration or transferred unregistered assets in relation to the land of this case Nos. 1-1, 1-2, 1-3, and 2-1, 2-2, 2-3, and 2-4.

The term "unregistered transferred assets" under Article 104 (3) of the Income Tax Act means that a person who acquires assets under Article 94 (1) 1 and 2 of the Income Tax Act transfers assets without registering the acquisition of such assets.

However, in this case, the plaintiff asserted that he was only engaged in the act of unregistered brokerage in the course of selling and buying each of the above lands, and criminal punishment was imposed on the grounds of the act of unregistered brokerage of land Nos. 1-1 and 1-2 in related criminal cases as seen earlier.

However, the plaintiff asserts that ① the plaintiff had been engaged in the planning real estate development business entity, which is the major purpose of the sale and purchase of each of the above lands, at the time of the sale and purchase of unregistered assets. ② The plaintiff appears to have led to the plaintiff’s calculation and responsibility, unlike the ordinary intermediary, such as securing the seller, the purchaser, and managing the sale and purchase price directly from the transferee in the process of the sale and purchase of each of the above lands, and paying to the transferor, and ③ the plaintiff received 48,00,000,000 won as the brokerage commission for the land No. 1-1, and 31,00,00,000 won as the brokerage commission for the land No. 1-2, but the sales price for the above land was KRW 90,00,00,000 from the planning real estate development business entity, and it is difficult to view that the sale price for the above land was the maximum sale and sale commission for each of the above land, and thus, it is difficult to view it as a criminal justice of the plaintiff as a mere sale and sale.

(2) Furthermore, we examine whether the transfer of land under Nos. 2-1, 2-2, 2-3, and 2-4 of this case without obtaining land transaction permission constitutes a valid transfer of assets.

On the other hand, the transaction contract, such as the sale contract within the land transaction permission area under the former Act on the Utilization and Management of the National Territory, takes effect only after obtaining permission from the competent authority. Before obtaining permission, it shall be null and void as well as the effect of the real right (see, e.g., Supreme Court Decision 90Da12243, Dec. 24, 191). Article 4(3) of the Income Tax Act provides that the transfer of assets in the transfer income refers to the actual transfer of assets at a cost, and the transfer of assets is not determined as transfer income only in the position of controlling, managing, or enjoying gains by identifying the transfer income only from an economic aspect. Thus, in the absence of the land transaction permission, it cannot be said that the sale price was paid first in advance and kept by the seller, thereby constituting the transfer of assets subject to the transfer income or having income from the transfer of assets (see, e.g., Supreme Court Decision 92Nu8361, Jan. 15, 1993).

However, according to the above facts, even if the Plaintiff purchased each of the above lands from ○○san in a state of not being registered, it is difficult to deem that the transfer of assets subject to capital gains was made with the payment of the purchase price for each of the above lands made to ○○san. Therefore, the Plaintiff’s imposition of KRW 110,693,950, out of the instant disposition based on the premise that the sale price for each of the above lands was made in a state of not obtaining a land transaction permission. Accordingly, the part on imposition of KRW 110,693,950, out of the instant disposition based on the premise that the Plaintiff paid the purchase price for each

3. Conclusion

Therefore, the disposition of imposition of capital gains tax of 110,693,950 won for the year 2005 among the disposition of this case cannot be exempted. Thus, the plaintiff's claim of this case is justified within the scope of the above recognition and accepted it within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.