National Tax Service Review and Transfer 2012-0028 (26 April 2012)

This disposition is legitimate on the date of transfer of ownership, etc. due to the uncertainty of the date of settlement

In the process, it is unclear when the liquidation of the transfer price was made, since the date of transfer of ownership transfer, etc. was the date of transfer of ownership transfer, the provisional registration was made to the effect that the ownership of the land was transferred if the purchase price was not repaid, and the provisional registration was made to the effect that the transfer of ownership was not paid until the due date.

2012Gudan17660 Revocation of Disposition of Imposing capital gains tax

XX

Head of Mapo Tax Office

December 7, 2012

January 11, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing capital gains tax of KRW 000 against the Plaintiff on January 31, 2012 is revoked.

1. Details of the disposition;

A. On February 28, 2008, the head of the Pakistan District Tax Office: (a) transferred the ownership transfer to thisA on the ground of the completion of the pre-sale agreement; (b) on August 1, 2010, the Plaintiff transferred the ownership transfer of the said three parcels to thisA on the ground that the Plaintiff did not report the transfer income tax; (c) on August 1, 2010, the transfer price of KRW 000 (tax base), acquisition tax (acquisition tax base), acquisition tax, acquisition tax amount of KRW 1,861 square meters prior to the same Ri; and (d) more than 4,125 square meters (two parcels subsequent to the division were divided on August 17, 2006; hereinafter referred to as “the instant land”) was calculated as the transfer price of KRW 1,474 square meters prior to the same Ri; and (d) determined and notified the transfer income tax for KRW 2008.

B. On January 31, 2012, the Defendant notified the director of the Central District Tax Office that the instant land constitutes non-business land, and notified the Plaintiff of the correction and notification of KRW 000 of the transfer income tax for the year 2008. The Plaintiff filed a petition for review with the Commissioner of the National Tax Service on February 15, 2012 on the ground that the transfer date of the instant land was based on the certificate of report on the real estate transfer as of November 25, 1999, which was reported and delivered pursuant to Article 165 of the former Income Tax Act (such as the report on real estate transfer, etc.) and the transfer value and acquisition value should be calculated as the actual transaction value.

C. The Defendant calculated the transfer value of the instant land at KRW 000 and the acquisition value at KRW 000 and corrected the reduction of KRW 000 by calculating the transfer value of the instant land at KRW 000 (hereinafter “instant disposition”), which was in the process of the examination of the said request, around March 2012 (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, entry in Gap evidence 2, 5, 7 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

① The Plaintiff borrowed KRW 000 from thisA in July 30, 1998 and interest 12% per annum. Around November 1999, when concluding a sales contract on the land of this case with thisA, the remaining payment date was set on December 15, 1999, and the Plaintiff and thisA agreed to set off the Plaintiff’s principal and interest on the loan of this case as of December 15, 1999, and the Plaintiff and thisA agreed to set off the remainder payment date as of December 15, 199. As such, the time of the transfer of the Plaintiff’s land of this case is the date of settlement of the price, and the ownership transfer registration was delayed due to the issue of the qualification certificate for acquisition of farmland. The Defendant’s disposition of this case that reported the transfer date differently is unlawful.

② On November 25, 1999, the director of the Namyang District Tax Office issued a written confirmation of real estate transfer report to the Plaintiff on December 15, 1999, which made the remainder date pursuant to Article 165 (2) of the former Income Tax Act, and expressed a public opinion on the fact that “the Plaintiff and thisA had sold the instant land on December 15, 1999 with the remainder date.” The Plaintiff issued a written statement of payment on the transfer tax amount to the Plaintiff, and thereby, expressed a public opinion on the fact that “the Plaintiff must pay the transfer income tax of KRW 00 on the transfer of the instant land.” The Plaintiff trusted such opinion without any cause attributable to the Plaintiff, and accordingly, paid the transfer income tax of KRW 00 on February 29, 200. Accordingly, the instant disposition is contrary to the public opinion expressed as above, thereby impairing the Plaintiff’s trust. Therefore, the instant disposition in question is unlawful as it goes against the principle of trust protection or the principle of trust and good faith.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) Judgment as to the Plaintiff’s assertion

Article 98 of the Income Tax Act and Article 162 of the Enforcement Decree of the same Act provide that the date of transfer or acquisition of assets shall be the date of liquidation of the price, but if the price is not clear, the date of registration, receipt of registration, or transfer of title recorded on the registry, registry, or list, etc. In full view of the evidence mentioned above and the following circumstances known by evidence Nos. 1, 3, 4, and 1, and No. 1, the date of settlement of price in the transfer of the land of this case is unclear. Thus, the defendant's disposition of this case as the date of transfer of ownership is legitimate, and the plaintiff's above assertion is without merit.

On June 19, 2006, this Act entered into a trade promise with the Plaintiff to the effect that the Plaintiff shall acquire the land of this case, which is the Plaintiff’s ownership, upon the completion of the trade promise, and upon the completion of the transaction promise, if the Plaintiff did not repay the land, and on June 21, 2006, this Act entered into a provisional registration of the preservation of the right to claim ownership transfer on the land of this case on the ground of the completion of the contract on April 18, 2007, which was the Plaintiff’s failure to pay the said money by the due date. This Act entered into a lawsuit claiming ownership transfer registration against the Plaintiff on the land of this case on the ground of the completion of the contract on the completion of the sale, and subsequently won the registration of ownership transfer on the land of this case on February 28, 2008, which is the provisional registration of security right, and this provisional registration seems to have been completed through the execution of the security right under this Act.

The plaintiff asserted that the purchase price of the land of this case was settled on December 15, 199, based on the confirmation of the real estate transfer report issued by the head of the Namyang District Tax Office on December 15, 199, but the confirmation document is in force pursuant to Article 165 of the former Income Tax Act (amended by Act No. 5580, Dec. 28, 1998; hereinafter the same shall apply) where a transaction party reports the transaction details of real estate to the head of the district tax office having jurisdiction over the place of tax payment prior to the application for ownership transfer registration, the transaction details of real estate shall be verified by the head of the district tax office having jurisdiction over the place of tax payment, and it is hard to find that the purchase price was settled on November 25, 199, which was completed on November 25, 199, and there is no direct evidence to prove that the sale price was actually completed on November 25, 199. The above argument of the plaintiff is in conflict with the above provisional registration and principal registration procedure (as alleged in the plaintiff's assertion).

B. There is no evidence to confirm when the liquidation of the transfer proceeds was made between the Plaintiff and the Plaintiff in the process of making a provisional registration or principal registration on the instant land.

(2) Judgment on the Plaintiff’s assertion

According to the facts and evidence mentioned earlier, the Plaintiff’s certificate of real estate transfer report is merely confirming that the Plaintiff’s real estate transfer report was filed with the Plaintiff’s transaction contents, and it is not a public opinion expressing the same contents as alleged by the Plaintiff, and the statement of payment on the Plaintiff’s transferred tax amount appears to mean “written guidance on the tax amount to be paid” under Article 165(3) of the former Income Tax Act. This is also based on the Plaintiff’s transfer report, and it is not a public opinion expressing the same contents as alleged by the Plaintiff. The Plaintiff’s above assertion on a different premise is without merit without having to further examine it.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.