Cho Jae-chul2013,0045 (Dismissal of 19 March 2013)

disposition which imposes tax on the transfer date of expropriated real estate on the date of expropriation shall be deemed to be the date of expropriation.

Since the commencement date of expropriation of the key real estate is more rapid than the date of receipt of ownership transfer registration, the disposition office considers the date as the transfer date and imposes no transfer income tax on it.

Article 162 of the Enforcement Decree of Income Tax Act

2013Guhap5055 Revocation of Disposition of Imposing additional tax

IsaA

The Director of the sericultural Tax Office

December 13, 2013

on January 17, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of the penalty tax of capital gains tax of 2010 on September 7, 2012 and the penalty tax of 00 won for special rural development tax of 201 shall be revoked.

1. Details of the disposition;

(a) Outline of the rearrangement project;

(a) Project name: 00 1-3 Urban Renewal Promotion Zone redevelopment and rearrangement project;

2) ○○-si public notice No. 2009-23 of March 31, 2009

B. ○○○ City Local Land Committee’s expropriation ruling on January 28, 2011

1) Commencement date of expropriation: March 18, 201

2) Land subject to expropriation: ○○○○○○-dong 137-9 large 208.30 square meters and its ground buildings owned by the Plaintiff; 137-11 large 78.00 square meters and its ground buildings owned by the Plaintiff; 137-19 large 105 large 105 square meters and its ground buildings

10 square meters and its ground buildings (hereinafter referred to as "the instant real estate")

3) Compensation for adjudication of expropriation: 00 won

(c) Ruling by the Central Land Tribunal on September 2, 201;

Compensation for an objection: 00 won

D. Meanwhile, members of the ○○○○-3 Housing Redevelopment and Improvement Project Association (hereinafter “the instant association”) filed a lawsuit seeking confirmation of establishment against the head of the instant association, but ① the concept of “owner of land, etc. even before the designation and public notice of the improvement zone can be presented and the scope can be effectively determined, and ② the approval for establishment of the promotion committee can be granted, and ② the approval for alteration was issued on August 9, 2010 on the ground that the approval for alteration was valid even if the approval for alteration was obtained from the Defendant with only the owners of the land, etc. in the extension zone without the new consent from the owners of the land, etc. in the existing zone where the Jindo had already agreed by the Jindo Committee without the consent of only the owners of the land, etc. in the extension zone (○○ court ○○○○ ○○○○○○○○○○○○○○○○○○), and members appealed, but agreed by more than 3/4 of the landowners, etc. on the ground that there was no serious and apparent defect in the instant disposition.

E. In addition, partners filed a lawsuit seeking revocation of the management and disposition plan against the instant association, and ① even if the committee of promoters was revised on February 6, 2009 and the period of organization of the committee of promoters is specified, it cannot be objectively clear that approval for establishment of the committee of promoters cannot be granted prior to the designation and public notice of the improvement zone. Thus, approval for establishment of the committee of promoters is not void automatically, and ② even if the committee of promoters obtained approval for change from the landowners, etc. in the existing area without obtaining new consent from the owners of the land within the extended area, it is valid even if the committee of promoters obtained approval for change from the owners of the land within the extended area without obtaining consent, and ③ it was dismissed on September 9, 2010 on the ground that there was no defect in the agreement for establishment of the association and the consent rate (○○ court ○○○○○○○○○○○○○○○○○), and its partners appealed on June 22, 2012.

F. Meanwhile, on October 4, 201, the Plaintiff filed a lawsuit on the increase in the amount of compensation for expropriation, and rendered a judgment of winning part of the Plaintiff, which increased the amount of ○○○○○○○ on August 7, 2012 (○○ court ○○ Joint○○○○), and the Plaintiff appealed the appeal, but the judgment of dismissing the appeal on October 17, 201 was finalized on October 6, 2013 (○○ court ○○○○○○○○○○○○○○○), and the judgment on November 6, 2013.

G. As to the instant real estate, on March 25, 201, the ownership transfer registration was completed on February 3, 2012 at each of the instant associations. As of February 3, 2012, the ownership of the instant building was reported to ○○○○○○ and the special rural development tax for the year 2012, and the Plaintiff paid KRW ○○○○○ on April 26, 2012, respectively.

H. However, on March 18, 201, the date of transfer of the instant real estate was deemed to be March 18, 201, and the Defendant calculated capital gains tax based thereon. On September 7, 2012, the Defendant issued a notice to the Plaintiff on September 7, 2012 that the Plaintiff would refund and appropriate the capital gains tax and additional dues for the year 201, which was paid by the Plaintiff (i.e., the part on which additional taxes are imposed, hereinafter referred to as “instant disposition”). On September 19, 2012, the Defendant notified the Plaintiff that the Plaintiff would refund and appropriate the capital gains tax and additional dues for the year 2012 (i.e., the KRW 00 + KRW 00).

I. On December 5, 2012, the Plaintiff dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal, but the Tax Tribunal dismissed the decision on March 19, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1 through 6, Gap evidence 8, 11, 15, Eul evidence 1 (if any)

Serial number includes all branches number; hereinafter the same shall apply), the purport of the entire pleading

2. The plaintiff's assertion

A. The Plaintiff continued to file a lawsuit seeking confirmation of the establishment of an association against the ○○ head, and the partners continue to file a lawsuit seeking revocation of the management and disposal plan against the instant association, and the Plaintiff was in the position of accepting the instant real estate until the said judgment becomes final and conclusive, and thus there was no possibility of expectation for the Plaintiff to report and pay capital gains on the date of the commencement of expropriation. Therefore, the instant disposition is unlawful, on the ground that there was justifiable grounds that it cannot be an error of violating the duty against the Plaintiff’s failure to perform its duty.

B. Article 162(1)7 of the Enforcement Decree of the Income Tax Act is not only a violation of the limitation of delegation order, but also an unjust infringement and restriction of property rights and freedom of conscience against the excessive prohibition principle, but also an invalid order in violation of the principle of tax equality. Accordingly, the instant disposition based thereon is unlawful.

3. Relevant statutes;

The Framework Act on National Taxes

Article 48 (Reduction, Exemption, etc. of Additional Taxes)

(1) Where penalty tax is to be imposed under this Act or any other tax-related Act, if the ground for such imposition corresponds to that for extending the due date under Article 6 (1) or the taxpayer has any justifiable ground for non-performance of the obligation concerned, the Government shall not impose penalty tax.

The Income Tax Act

Article 98 (Time of Transfer or Acquisition)

In calculating gains on transfer of assets, the time of acquisition and transfer shall be limited to the date of liquidation of the price of relevant assets, except in cases prescribed by Presidential Decree, such as cases where the date of liquidation is unclear. In such cases, if the transferee has agreed to bear capital gains tax and additional tax on capital gains tax on the transfer of relevant assets, the relevant capital gains tax and additional tax on capital gains tax shall be excluded.

The Enforcement Decree of the Income Tax Act

Article 162 (Time of Transfer or Acquisition)

(1) "Cases prescribed by Presidential Decree, such as where the date on which the price has been paid is unclear" in the former part of Article 98 of the Act means the following cases:

[1]

7. Where land is expropriated for public works under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects or other Acts, the earlier date between the date the price is settled, the date the expropriation is commenced, or the date the transfer of ownership is accepted;

[1]

4. Determination

(a) the existence of justifiable grounds;

1) Additional tax under tax law is an administrative sanction imposed as prescribed by the Act in cases where a taxpayer violates various obligations, such as a return and tax payment, in order to facilitate the exercise of the right to impose taxes and the realization of a tax claim without justifiable grounds, and does not constitute justifiable grounds that do not cause the taxpayer’s intentional and negligent acts but do not constitute a breach of duty (see, e.g., Supreme Court Decision 2001Du4689, Nov. 13, 2002).

2) Article 98 of the Income Tax Act provides that the date of liquidation of the price of the relevant asset shall be the time of acquisition and time of transfer in calculating gains from transfer of assets, except in cases prescribed by Presidential Decree, such as where the date of liquidation of the price is unclear, and Article 162(1)7 of the Enforcement Decree of the Income Tax Act (hereinafter referred to as "Enforcement Decree") provides that "cases prescribed by Presidential Decree, such as where the date of liquidation of the price is unclear" shall be the date of liquidation, the date of commencement of expropriation or the date of receipt of ownership transfer registration where the price is expropriated for public works under the Act on Acquisition of and Compensation for Land, etc. for Public Works (hereinafter referred to as the "Public Works Act") or other Acts.

3) On March 19, 201, the following facts revealed by the above facts, i.e., the first instance court of the relevant case, which had already been sentenced to the dismissal of all the members' claims before the date of expropriation, and there was no circumstance to deem the validity of the instant improvement project or the instant adjudication on expropriation. The instant association deposited all the compensation determined by the adjudication on expropriation before the date of expropriation; the Plaintiff raised an objection against the ○○○○○○○○○○○○ upon filing an objection to the compensation determined by the adjudication on expropriation, and filed a lawsuit claiming the increased amount of compensation for expropriation on October 4, 201. However, it appears that the Plaintiff could have expected to report and pay the compensation determined by the adjudication on expropriation as capital gains, and the Plaintiff could have filed a claim for correction of the transfer income tax on the basis of the compensation determined by the adjudication on expropriation date, and it is difficult to view that the Plaintiff merely failed to report and pay the transfer income tax on the date of commencement of expropriation based on the relevant provisions on the Framework Act on National Taxes.

B. Whether the delegation legislation goes against the limitation of delegation legislation and the principle of excessive prohibition

1) One of the important criteria for determining whether a provision of the Enforcement Decree goes beyond the scope of delegation by the mother law is predictability. This means that the contents of the Enforcement Decree in question are already specifically delegated by the mother law, and should belong to the scope within which anyone can predict the delegated contents from the mother law itself. The existence of such predictability is not determined by only one of the pertinent specific provisions, but should be determined by systematically and systematically considering the legislative intent of the law.

2) In calculating gains on transfer of assets, Article 98 of the Income Tax Act, which is a delegation provision of the Enforcement Decree, stipulates that the time of acquisition and transfer shall be the date of settlement of the price of the relevant assets except in cases prescribed by Presidential Decree, such as where the date of settlement of the price is unclear, etc., and that in cases prescribed by Presidential Decree, it is unclear by the mother law that the date of settlement of the price may not be the base date of gains on transfer.

3) Meanwhile, in the case of the expropriation of land for public works, the project implementer shall pay the compensation adjudicated by the competent Land Tribunal by the commencement date of expropriation (Article 40(1) of the Public Works Act), and the landowner and the project implementer may change the amount of compensation by raising an objection to the Central Land Tribunal against the said compensation (Article 83). (Article 83) In the event of a dispute over the amount of compensation in the land expropriation procedure, it is difficult to determine the basic date of transfer margin in cases where the date of liquidation is unclear, and accordingly, it is difficult to deem that the provisions of the Enforcement Decree set the basic date of transfer margin to have exceeded the limit of delegated legislation.

In addition, the relevant provisions of the Income Tax Act on the base date for the calculation of capital gains on transfer excludes taxpayers from taxation and uniformly identify taxable income and limit the acquisition time and time of transfer of assets in tax calculation in order to uniformly grasp the acquisition time and time of transfer of assets which are various standards within the system of the income tax law and to interpret and apply without inconsistency with the relevant provisions. Capital gains are imposed on income due to the transfer of assets, the transfer of assets is finally determined due to the commencement of expropriation, the right to claim compensation for expropriation is finally established, and the project implementer must deposit the compensation before the commencement date of expropriation. In light of the fact that the Enforcement Decree of this case requires the calculation of capital gains on the basis of the earlier date of the date of expropriation, the date of settlement of proceeds, and the date of receipt of the registration of transfer of ownership, it does not seem that the legislative discretion was exceeded as a matter of choice of the legislative technology that calculates capital gains on transfer gains. Accordingly, the argument that the provisions of the Enforcement Decree violated the Plaintiff’s property rights, etc. beyond the principle of excessive prohibition is rejected

5. Conclusion

The plaintiff's claim is dismissed in entirety as it is without merit, and the costs of lawsuit are fully borne by the losing party.

section 3.