Transfer of real property of this case is a resale of unregistered transferred assets, not the right to purchase the real property.

(As with the decision of the court of the third instance), the heavy taxation rate on unregistered transferred assets under Article 104 (1) 3 of the former Income Tax Act should be applied to the fact that the registration of acquisition was completed immediately without completing the registration of transfer of ownership under the plaintiff's name.

Articles 94 and 104 of the Income Tax Act

Seoul High Court 2013Nu29713 Revocation of Disposition of Imposing capital gains tax

Park ○

○ Head of tax office

Seoul Administrative Court Decision 2011Gudan19263 decided February 15, 2012

March 5, 2014

April 2, 2014

1. The Defendant’s appeal on the Plaintiff’s claim for revocation of capital gains tax 2 XX, capital gains tax, capital gains tax-related class, capital gains tax-related class, and capital gains tax-related class, among the disposition of capital gains tax for 2002 attributable to the Plaintiff on January 1, 201.

2. Of the total litigation costs, 40% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

and purport of appeal, scope of appeal by this court

1. Purport of claim and appeal

The decision of the first instance court shall be revoked. The disposition of the Defendant rendered on January 201 by the Plaintiff on January 201, 202 on the imposition of both labor-management income 1, labor-management income 202, labor-management income -

2. Scope of the judgment of this court;

The Plaintiff sought revocation of the disposition of imposition of capital gains tax 1, 2002 for the Plaintiff on January 201, 201 X. The first instance court dismissed the Plaintiff’s claim. The Plaintiff appealed on January 1, 201, and the first instance court dismissed the Plaintiff’s claim. Before remanding the Plaintiff’s appeal, this court revoked the part exceeding the capital gains tax 1, 1, 2002, 3 XX, 3, 3, 3, 3, 3, 300 of the disposition of imposition of capital gains tax for the Plaintiff on January 1, 201, and dismissed the Plaintiff’s remaining claim. As to each part against the Plaintiff and the Defendant’s losing, the Supreme Court reversed and remanded the part against the Defendant on the principal capital gains tax (2, 6, 3, 3, 4, 4) and dismissed the Plaintiff’s appeal and the Defendant’s remaining appeal. Accordingly, the scope to be tried is limited to both labor income tax principal, 2, 2002.

1. Details of the disposition;

A. The title transfer registration was completed on X. X. 200 X. X. 200, and the title transfer registration was completed on X. X. 200 X. X. X. 200 X.B. However, when filing a final return on tax base of transfer income on the part of the plaintiff around X. X. 200, the above Gohap-gu ○○○○○-dong 6 XX 575 square meters (hereinafter “the instant land”) reported that this △△△-dong ○○○-dong 6 billion won (hereinafter “the instant land”). While this △△-dong ○○-dong ○○-dong ○○○-dong 6 billion won (hereinafter “the instant land”), this △△△-dong ○○-dong 2.1 billion won (hereinafter “the ownership transfer registration was completed on the part of this case”).

C. Accordingly, on the ground that the Plaintiff sold the instant land before the registration, the Defendant issued the instant disposition to impose and notify the Plaintiff of the capital gains tax 1, 1, 201 X. X. 202 (i.e., this tax year, 6 XX, 3, 9, 9, 9, 9, 9, 9, 9).

2. Whether the instant disposition is lawful

Among the instant dispositions, the Defendant’s appeal regarding the Plaintiff’s portion of the principal tax on the 3 XX, the wage class, the wage class, the wage class, the wage class, and the additional tax amount were dismissed, and thus, the Defendant’s appeal regarding the Plaintiff’s portion of the principal tax of the instant disposition is dismissed, and thus, the Defendant’s appeal on the remaining 2

A. The plaintiff's assertion

1) The Plaintiff, not the flag that transferred the instant land, but the right to acquire the instant land, is transferred. However, the Defendant, on the ground that the Plaintiff acquired the instant land and sold it unregistered, rendered the instant disposition by applying the heavy taxation rate. Therefore, the instant disposition is unlawful in that it is unlawful.

2) The instant disposition was made after the expiration of the exclusion period for imposition of seven years, and thus illegal.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Determination as to the assertion that the heavy taxation rate cannot be applied

(A) Article 94(1) of the former Income Tax Act (amended by Act No. 7006, Dec. 30, 2003; hereinafter the same) provides that "transfer income is income accruing from the transfer of land or building under subparagraph 1; and "income accruing from the transfer of right to acquire real estate" under subparagraph 2(a) are income subject to taxation respectively. Meanwhile, Article 104(1)3 of the former Income Tax Act provides that "transfer income tax rate of 60/100 for unregistered transferred assets" under the main sentence of paragraph (3) provides that "in cases where a person who acquired assets under subparagraphs 1 and 2 of Article 94 (1) fails to register the transfer of ownership to a purchaser of such real estate in the name of the purchaser, who purchased the real estate in the name of the purchaser, fails to register the transfer of ownership under the name of the purchaser, and thus, if the purchaser transfers the real estate to a third party without any special agreement to transfer the ownership registration under the name of the purchaser, such as the sale and purchase of the real estate, it can be applied."

다) 이 사건에 관하여 살피건대, 을 제1 내지 5호증(가지번호를 포함한다)의 각 기 재, 제1심 증인 김□□, 권◎◎, 당심 증인 박★★의 각 일부 증언에 변론 전체의 취지를 종합하면, ① 원고가 200X. X.경 김□□과 사이에 김□□ 소유의 이 사건 토지를 대금 13억 6,000만 원에 매수하기로 하는 매매계약(이하 '제1 매매계약'이라고 한다)을 체결한 사실, ② 원고는 김□□에게 계약금 1억 원을 지급한 상태에서 200X. X. X. 이 현석과 사이에 이 사건 토지를 대금 24억 원에 매도한다는 내용의 부동산 매매계약을 체결하고, 같은 날 이☆☆으로부터 계약금 3억 원을 지급받은 사실, ③ 이☆☆은 200X. X. XX. 다시 정◇◇에게 이 사건 토지를 매수할 수 있는 권리를 대금 3억 원에 매도하되, 위 대금 수령과 동시에 원고와 체결한 매매계약에 의한 모든 권리를 포기하고 이 사건 토지에 관한 등기이전서류를 구비하여 정◇◇에게 넘긴다는 내용의 매매계약을 체결한 사실, ④ 그 사이 원고는 김□□에게 이 사건 토지 매매대금 중 잔금 7억 원을 제외한 나머지 대금을 지급한 사실, ⑤ 원고는 200X. X. X. 김□□과 정◇◇이 있는 자리에서 정◇◇으로부터 잔금 21억 원을 지급받아 김□□에게 그 중 7억 원을 제1 매매계약에 기한 잔금으로 지급하였고, 김□□과 정◇◇은 같은 날 이 사건 토지에 관하여 김□□으로부터 정◇◇에게 직접 소유권이전등기를 경료하기 위하여 200X. X. XX.자 매매계약서를 작성하였으며, 이에 기하여 정◇◇ 명의의 소유권이전등기가 마쳐진 사실을 인정할 수 있다.

D) Examining these facts in light of the legal principles as seen earlier, insofar as the Plaintiff continued to have entered into a sales contract for the land of this case with the △△△△△ without paying the price to △△△, and the Plaintiff continued to have maintained the relationship of rights and obligations or the status of purchaser in accordance with the first sales contract, this constitutes a transfer of real estate, not a transfer of the right to acquire real estate. Although it was possible for the Plaintiff to register the acquisition in full by receiving the remainder payment from △△△△△△, he received from △△△△△, who succeeded to the status of △△△△△△△△△, thereby making the registration of ownership transfer soon completed the registration of ownership transfer without filing the registration of ownership transfer under the name of the Plaintiff, and thus, the heavy and tax rate on the unregistered transferred assets under Article 104 (1) 3

2) Judgment on the assertion that the exclusion period has expired

A) Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 7008, Dec. 30, 2003; hereinafter the same) provides that when a taxpayer fails to file a tax base return within the statutory due date of return, the exclusion period of imposition of national taxes shall be seven years (Article 26-2(1) of the former Framework Act on National Taxes). However, the exclusion period of imposition shall be extended to 10 years from the date on which the taxpayer is entitled to impose the national tax, where the taxpayer evades a national tax, or obtains a refund or deduction by fraudulent or other unlawful means

B) The legislative intent of Article 26-2(1)1 of the former Framework Act on National Taxes is to extend the exclusion period for imposition of national taxes to 10 years because it is extremely difficult to expect exercise of the right to impose taxes because it is difficult for the tax authority to find that there is any unlawful act, such as making it difficult to detect the taxation requirement of national taxes or forging false facts, unlike simple non-declaration of return. Therefore, it constitutes a fraud or other unlawful act as stipulated in Article 26-2(1)1 of the former Framework Act on National Taxes, by taking part in preparing a sales contract as if the purchaser and the final buyer have entered into a direct sales contract with the seller to obtain profits from the purchase and resale of real estate. Furthermore, the transfer registration of ownership is directly connected to the final buyer, while even without filing a preliminary return or final return on transfer income tax, it is a deceptive scheme or other active act that makes it considerably difficult or considerably difficult to impose and collect taxes.

C) On the instant case, the Plaintiff purchased the instant land from Kim Young-si and sold it to △△△△, and even if this △△△ again sold the instant land to △△△△△△, the Plaintiff made a false sales contract and made a registration of ownership transfer to △△△△△, which was the final purchaser. Meanwhile, the tax authorities failed to make a preliminary or final return on gains from transfer acquired from the resale, and did not make any investigation or final return under the Income Tax Act, thereby passing the final return period of capital gains tax base. As such, the Plaintiff’s act constituted fraud or other unlawful act that makes it impossible to impose and collect taxes or significantly difficult to do so, the exclusion period of 10 years is applicable to the Plaintiff’s capital gains (see Supreme Court Decision 91Do2439, Sept. 14, 1992).

D) Meanwhile, Article 110(1) of the former Income Tax Act provides that a resident having any transfer income amount in the relevant year shall file a report on the tax base of transfer income with the head of the tax office having jurisdiction over the place of tax payment from May 1 to May 31 of the year following the current year. Article 114(1) provides that the head of the tax office having jurisdiction over the place of tax payment shall determine the tax base of transfer income and the amount of tax if the person liable to file a final return under Article 110 fails to do so. The Plaintiff did not file a return on the tax base of transfer income by May 31, 2003. As seen earlier, the 10-year exclusion period for the Plaintiff’s transfer income is in progress from January 1, 200, the date on which the tax can be imposed, and the period of 10-year exclusion expires. However, since the Defendant issued the instant disposition on October 20, 201, the instant disposition was made before the expiration of the exclusion period. Accordingly, the Plaintiff’s assertion to this part of this point is without merit.

3. Conclusion

Therefore, the claim of this case against capital gains tax principal 2 XX, capital gains tax, capital gains tax, and capital gains tax shall be dismissed as it is without merit. The judgment of the court of first instance is justified in this part, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.