Review Transfer 2009-0200 ( November 18, 2009)

In case of applying for auction by acquiring the land and the right to collateral security, the substance is the unregistered transfer.

If a successful bidder receives a successful bid price by applying for an auction without completing the registration of transfer of ownership by taking over the land as well as the right to collateral security established on the land, it constitutes a transfer unregistered.

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

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Head of Public Tax Office

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of KRW 220,846,160 on February 2, 2009 against the Plaintiff was revoked.

1. Circumstances of dispositions;

The following facts are not disputed between the parties, or acknowledged in full view of the descriptions of Gap evidence 1 through Eul evidence 6, Eul evidence 1, Eul evidence 2 (including each number), Eul evidence 3-1, 3, 4, Eul evidence 4, and the purport of the whole pleadings.

A. On January 10, 2003, the Plaintiff purchased a total of 7,559 square meters of 00 m27,000 m27,000 m27,000 m27,559 m27,000 m27-7,000 m27,000 m27,850 m2,000 m2,000 (hereinafter referred to as the “instant land”) between the twoAs, Chungcheongnam-do, ○○○, ○○, in total, KRW 72,500 m2,50 m2,000 m2,000 sales price. The Plaintiff agreed to pay the m2,

B. On March 13, 2003, the Plaintiff paid KRW 20 million to the seller both countries for intermediate payment, and registered the change of the right to collateral security that was the mortgagee of ParkB, who was the mortgagee of the instant land, transferred the right to collateral security and changed the mortgagee to the Plaintiff. On June 7, 2003, the Plaintiff applied for voluntary auction on the instant land and paid KRW 42.5 million to the above both countries on July 26, 2003 during the process, and then transferred the right to collateral security of ParkB and DaCC, who was the joint mortgagee, as the mortgagee of the instant land. Thereafter, the Plaintiff received dividends from each of the auction proceeds of the instant land as the mortgagee during the said voluntary auction procedure awarded on March 10, 204 and August 17, 2005.

C. Accordingly, by deeming the Plaintiff to have resold the instant land to a successful bidder without registration, the Defendant: (a) applied Article 96(1)3 of the former Income Tax Act (amended by Act No. 7579, Jul. 13, 2005); and (b) Article 104(1)3 of the same Act (amended by Act No. 7319, Dec. 31, 2004); (c) deemed as KRW 282,423,833 of the dividend that the Plaintiff received as above; and (d) calculated the amount calculated by subtracting the above purchase price of KRW 72,50,000,00 from the acquisition price; and (e) calculated the tax amount calculated by applying the tax rate of KRW 146,946,683 of the unregistered transferred asset by 70/100 of the transfer income tax rate of KRW 146,694,68 and additional tax of KRW 14,698,208; and (e.g., 2009.

2. Whether the dispositions of the instant case are legal.

(a)the master of the plaintiff;

The plaintiff argues that the disposition of this case is illegal for the following reasons.

(1) At the time of the sales contract, the Plaintiff organized provisional attachment, etc. established on the instant land and subsequently changed the terms and conditions of the contract that the Plaintiff did not transfer the ownership to the Plaintiff, but did not transfer the ownership. Since the amount that the Plaintiff paid to both countries is not the price for the transfer of ownership, but the price for the transfer of the right to collateral security, the Plaintiff cannot be deemed to have acquired the instant land. Accordingly, the amount that the Plaintiff received as dividends from the purchaser of the right to collateral security but cannot be deemed as transfer income that was transferred to the unregistered pre-sale

(2) Even if the Plaintiff originally decided to purchase the instant land itself, so long as the instant land was transferred by auction, it shall be deemed that both A and B, the owner of the instant land, was transferred in the future of Park DoD, the highest bidder, and the Plaintiff cannot be deemed as having intended to transfer or transferred Park DoD, and the Plaintiff’s request for auction shall not be deemed to have been made only in the process of purchase but also in the process of sale, and it shall not be deemed that both A and B were transferred in duplicate to Park DoD, and therefore, the Plaintiff cannot be deemed to have sold the instant land to Park

(3) The Plaintiff did not necessarily have a duty to receive a successful bid, and did not know the fact that he would receive a successful bid from another person. Thus, it cannot be deemed that there was an intention to transfer or transfer the instant land to the Plaintiff, and even if family gamblingD’s receipt of a successful bid constitutes the Plaintiff’s transfer act, it cannot be deemed that the Plaintiff did not have any tax avoidance or speculation purpose, and thus, it cannot be deemed that the transfer income tax is unregistered transferred assets, the transfer income tax

(b) relevant statutes;

It shall be as shown in the attached Form.

(c)a recognition;

The following facts may be acknowledged pursuant to the overall purport of evidence, evidence, evidence No. 7, and evidence No. 5 as mentioned above, or the whole of the arguments and evidences No. 9 to No. 12, and the above facts shall not interfere with the above recognition by only the descriptions of evidence No. 9 to No. 12.

(1) On Jan. 10, 2003, the Plaintiff agreed to purchase the instant land owned by the two AE, which is jointly owned by the two AE (hereinafter referred to as “instant sales contract”) with the purchase price of KRW 72.5 million (57,500,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000).

(2) At the time, on the land of this case, the maximum debt amount is 30 million won for the reason of the contract to establish the right to collateral security on March 25, 1993: the debtor; the literatureF, the children of both countries; the mortgagee of both countries, the mortgagee of both countries: the registration of the establishment of the right to collateral security was completed on May 19, 193; and the registration of provisional attachment was completed on February 16, 200 by the National Bank of Korea with the claim amounting to 319,22,022 won for the provisional attachment order issued on February 16, 200.

(3) In order to avoid the above provisional attachment burden and transfer the ownership of the land of this case, the Plaintiff and YangA agreed to transfer the ownership of the land of this case by acquiring the right to collateral security claims and collateral security through a voluntary auction procedure, and the Plaintiff acquired the land of this case through a successful bid in the auction procedure (hereinafter referred to as the “instant agreement”).

(4) In accordance with the instant sales contract and agreement, the Plaintiff paid intermediate payment of KRW 20 million to bothA and completed the supplementary registration with the purport that the joint mortgagee ParkB as to the right to collateral security established on the instant land was changed to the Plaintiff on March 27, 2003 due to the transfer of shares by ParkB in ParkB. Furthermore, the Plaintiff filed an application for voluntary auction of the instant land with the court 2003Ma16016 and issued a decision to commence the auction on June 9, 2003 pursuant to the instant agreement. In addition, on July 26, 2003, the Plaintiff paid the remainder of the instant sales contract KRW 42,50,000,000,000 to the YangA, representing the joint mortgagee, and received the certificate of assignment and the power of delegation in the name of OCC to the effect that the said joint mortgagee would transfer his claim on collateral security, share, dividend, and so on.

(5) At the subsequent auction procedure, the instant land was awarded to Park DoD who participated in the bid of KRW 285,440,000, the highest purchase price, and each of the 141.21.916 won, excluding auction expenses and interest, was distributed to the Plaintiff and GoCC. As a result of the appraisal conducted for the progress of the auction, the value of the instant land was assessed as KRW 237,870,000.

(6) On July 14, 2005, the Plaintiff asserted that the above deed of transfer and power of attorney were forged, and thus, the Plaintiff could not receive dividends equivalent to the share of the LCC’s collateral in the above auction procedure, the Plaintiff filed a lawsuit against LCC to the effect that LCC would transfer the right to claim a dividend payment from the LCC to the Plaintiff by the court 2004Gahap7853.

(7) At the time, the land price of the instant case was rapidly increased due to the event of the real estate economy, such as the relocation of the administrative city. The Plaintiff obtained land transaction permission on January 22, 2003, following the conclusion of the sales contract for the instant land.

D. Determination

(1) Determination on the first argument

(A) The following circumstances are acknowledged by the above recognition: ① the Plaintiff asserted that the Plaintiff acquired the instant land from the first complaint to avoid the restriction on provisional seizure through a request for auction; however, the acquisition of the instant claim and the right to collateral security was done as a means of avoiding the restriction on provisional seizure in the course of the registration of ownership transfer under the sale and purchase contract of the instant land; ② The acquisition of the instant land is merely a means of performing the sale and purchase of the instant land. ② The Plaintiff, a seller, was not directly conducted with ParkBB or DaCC, and was made on behalf of the Plaintiff at the time of the purchase and sale of the instant land, and the sale price of the instant land was KRW 725 million, whereas the sale price of the instant land was set at KRW 30,000,000,000, and it was difficult to accept the change of the sale and purchase price of the instant land to the extent that it did not reach the extent of the initial sale and purchase price of the instant land, regardless of the fact that the sale and purchase price of the instant land was altered.

(C) Therefore, the instant sales contract and agreement are substantially a sales contract to acquire the instant land, not a collateral security underwriting contract, for consideration. Therefore, the Plaintiff’s above assertion is without merit.

(2) Judgment on the second argument

(A) In the transfer by auction, the successful bid price belongs to the owner of the real estate at auction, and the mortgagee is merely a payment of the successful bid price reverted to the owner of the real estate at auction as a repayment of the obligation (see Supreme Court Decision 86Nu60, May 27, 1986). However, in order to apply the above legal doctrine, the plaintiff should be recognized as having been actually only a mortgagee.

(B) However, the following circumstances acknowledged by the above facts, namely, ① the sales contract and the agreement of this case, as seen earlier, are not the contract to purchase the land of this case or the contract to acquire the land of this case, and as seen earlier, the time of acquisition and transfer of assets under the Income Tax Act is the date of liquidation of the price of the relevant assets. As such, the plaintiff shall be deemed to have acquired the land of this case on July 26, 2003, which was paid to both countries. ② Auction is to be established on the premise of the existence of an unspecified number of applicants for purchase. Thus, even if the plaintiff applied for voluntary auction of the land of this case, it is difficult to view that there was no intention to transfer or transfer the land of this case to the plaintiff. ③ The plaintiff applied for auction for the purpose of acquiring the land of this case, but it is difficult to believe that it would have been successful bid price at least 200 million won without knowing the bid price of this case, and the plaintiff could not be deemed to have received the bid price of this case.

(C) Therefore, the Plaintiff transferred the instant land to Park DoD through auction without completing the registration of ownership transfer in its future. Therefore, the Plaintiff’s above assertion is without merit.

(3) Judgment on the third argument

(A) The purport that the transfer income tax is levied on the unregistered transferred assets is to prevent and avoid the transfer of assets without registering their acquisition at the time of transfer by the person who acquired the assets without registering their acquisition. As such, in acquiring the assets at the beginning, it is recognized that there is no purpose of speculation such as tax avoidance through the transfer of assets or acquisition by transfer of unregistered assets, and that there is no purpose of speculation such as acquisition through the transfer of assets, and in other cases, it is harsh to enforce the transferor on the responsibility of failing to register the acquisition of the assets at the time of transfer to the transferor in accordance with each subparagraph of Article 168(1) of the former Enforcement Decree of the Income Tax Act (see Supreme Court Decision 94Nu8020, Apr. 11, 1995).

(C) However, the following circumstances acknowledged by the above facts, namely, ① the land nearby the land at the time when the Plaintiff was pointed out, increased land prices due to the development of an administrative city. ② Under such circumstances, the appraisal value at the time was awarded a bid price of 237,870,00 won, which was lower than the above high cost bid price. It is difficult to believe that the Plaintiff could not expect such high-priced bid. ③ As seen earlier, the Plaintiff applied for an auction without paying the price in full and without paying the ownership transfer registration, and the Plaintiff did not have any intention to acquire the proceeds of sale of the bid. However, considering the above series of procedures and circumstances, it is difficult to view that the Plaintiff did not have any intention to acquire the ownership transfer of the land at least 9,000 won for which the Plaintiff applied for a provisional attachment registration under the name of 10,000 won, and thus, it cannot be viewed that there was no reason to view the Plaintiff’s acquisition of the ownership under the proviso to Article 96(1)3 of the former Income Tax Act or the proviso to Article 16(1) of the former Enforcement Decree of the Act.

(4) The theory of lawsuit

Therefore, it is legitimate to consider that the Plaintiff sold the instant land without registration in the instant disposition, and to calculate gains on transfer based on the actual transaction price and to apply the tax rate for unregistered transferred assets.

3.In conclusion

Therefore, the plaintiff's claim of this case is without merit, and it is so decided as per Disposition by the court below.