Whether it falls under the transfer of expensive houses that sell land and buildings together;

If a house is transferred on condition that it is destroyed, it would be reasonable to view that the subject matter of sale is limited to the land. Thus, the imposition of capital gains tax based on the actual transaction price premised on the premise that the land and building fall under the transfer of a high-priced house is illegal.

Article 96 of the Income Tax Act

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

All of the records of this case and the judgment of the court below and the grounds of appeal were examined, but it is clear that the appellant's grounds of appeal fall under Article 4 of the Act on Special Cases Concerning the Procedure of Appeal and therefore, the appeal is dismissed pursuant to Article 5 of the above Act. It is so decided as per Disposition by

[Seoul High Court Decision 2007Nu1172, August 23, 2007]

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition disposition of capital gains tax of KRW 61,889,730 against the Plaintiff on September 12, 2005 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The judgment of dismissal in the first instance was rendered on the part of the resident tax, although the plaintiff filed a request with the original ○○ District Court to revoke the disposition of imposition of capital gains tax of KRW 6,188,970, which is to be imposed on capital gains tax, along with a request for revocation of the disposition of imposition of capital gains tax on the above order, but the decision of rejection was rendered on the part of the above resident tax. However, since the plaintiff did not file an appeal on the part of the above resident tax,

1. Details of the disposition;

A. On December 15, 2003, the Plaintiff transferred the instant land to ○○○○○○-dong, Seoul (hereinafter “instant land”) in KRW 1,025,00,00 (hereinafter “instant sales contract”) and completed the registration of ownership transfer of the instant real estate on December 16, 203 in the name of ○○○○○○○○○○○○○○○○○○○○ site (hereinafter “instant land”). On February 17, 2004, the Plaintiff registered the destruction of the instant building on February 17, 2004, by applying the standard market price to the Defendant on the instant land. On February 18, 2004, the Plaintiff was reported and paid the remainder of KRW 1,025,00 on December 15, 200, by applying the standard market price to the Defendant.

B. In order to build a new business facility (officetel and office) on the instant land, Kim ○-○ applied for a construction permit on December 24, 2003, and obtained a construction permit from the head of ○○○-gu Seoul Special Metropolitan City on January 13, 2004.

C. On September 18, 2005, the Defendant notified the Plaintiff of the correction of the transfer income tax of KRW 61,889,730 as well as the resident tax of KRW 6,188,970 as to income tax of KRW 61,88,970 as to income tax of KRW 61,889,730 as well as KRW 6,18,970 as income tax (hereinafter “instant disposition”).

D. On October 11, 2005, the Plaintiff filed a request for an inquiry with the National Tax Tribunal, and received a decision of dismissal on March 6, 2006.

[Reasons for Recognition] Facts that there is no dispute between the parties, Gap evidence 1, 4, Gap evidence 5-1, 2, Gap evidence 6, Gap evidence 7-1, 2, and Gap evidence 8, and the purport of the whole pleadings

2. Determination of legality of disposition

A. The parties' assertion

(1) The defendant's assertion

Since the land of this case was transferred to the purchaser before the remainder payment date, the transfer date of the land of this case shall be deemed the registration date of ownership transfer. Since the housing of this case exists at the time of transfer, the transfer date of the land of this case constitutes a transfer of a high-priced land appurtenant to a high-priced land, the disposition of this case that calculated transfer income tax by calculating transfer margin

(1) The plaintiff's assertion

The subject matter of the instant sales contract is limited to the instant land, and the reason why the Plaintiff completed the registration of ownership transfer of the instant land to the buyer before the remainder payment date is due to the buyer’s demand to obtain the construction permit before strengthening the construction permit requirements. Thus, even if the instant housing existed at the time of the registration of ownership transfer, it cannot be deemed a transfer of appurtenant land, and the instant disposition on the premise thereof is unlawful.

B. Determination

(1) The key issue of the instant case is whether transfer income tax can be imposed on deeming that the transfer of the instant land constitutes a transfer of land appurtenant to a high-priced house with a standard market price exceeding 600 million won, by deeming that the instant land was sold between the parties to the purchase and sale, but the housing on the ground was not removed at the time of the transfer of the ownership of the instant land, i.e., the instant

(2) Generally, when selling land on which a house has been constructed, selling only the land which is the site, unless the building on the ground is worn out to the extent that it cannot be used as a house (see, e.g., Supreme Court Decision 84Nu440, Apr. 23, 1985). However, whether only the land, except a house between the parties to the sale and purchase, has to be reasonably determined by comprehensively taking into account the intent between the parties to the sale and purchase, the necessity of the sale, the details of the sales contract, the details of the sales contract, the transfer of real estate

(3) In full view of the evidence evidence evidence Nos. 9 through 20, and evidence Nos. 1 through 4 (including paper numbers), the following facts are recognized.

① On December 15, 2003, the Plaintiff entered into the instant sales contract to sell only the instant land to Kim○○○ in KRW 1,025,00,000, and only the instant land as the subject matter of sale was entered in the said sales contract.

The instant house, which is located on the ground of the instant land, is a multi-household house with 10 households and has obtained approval for use on November 13, 1995. From before entering into the said sales contract, Kim ○, who purchased the instant land, concluded the said sales contract with the Plaintiff by clarifying the purpose of purchasing the instant land, namely, the purpose of constructing and operating officetels on the instant land instead of building and operating officetels on the instant land, and upon being aware of such circumstances, the Plaintiff also knew of the said circumstances and presented the tenants who reside in the instant house at his own responsibility (the Plaintiff and his father resided in the room of the instant house, and some rooms were nonexistent, and thus, the lessee to be removed was to remove the instant house and deliver the instant land to Kim ○○ by removing the said house to the Plaintiff.

③ On December 10, 2003, before the conclusion of the above sales contract, the Plaintiff continued negotiations for the removal from the instant house against the lessee residing in the instant house from around December 10, 2003, and returned the lease deposit to the lessee from around December 31, 2003 to January 31, 2004, and removed all of the instant house from the instant house. Furthermore, on January 25, 2004 (after the conclusion of the sales contract, one month after the date of the sales contract), the Plaintiff entered into a contract for the removal of the instant house from 20,90,000 won to February 11, 2004, and the registration of removal of the instant house was completed on February 17, 2004.

On the other hand, in order to file an application for a construction permit necessary to build a new officetel on the ground of the land of this case, the purchaser ○○ demanded the Plaintiff to transfer the ownership of the land of this case before payment of KRW 425 million. In order to provide convenience to Kim○, the Plaintiff transferred the ownership registration of the land of this case before December 16, 2003 (the above land was transferred to Kim○○, but the ownership transfer registration of the house of this case was transferred to the future of Kim○, but the transfer registration of the house of this case was not necessary because the ownership transfer registration of the house of this case was completed on the ground of mistake and completed the registration of ownership transfer of the house of this case in the name of Kim○○, ○○○, ○○○○, a certified judicial scrivener entrusted with the registration of ownership transfer was found to have been completed on December 19, 200, but he obtained the construction permit of this case from the head of the building on the ground of the building permit of this case on December 16, 2003.

⑤ On February 20, 2004, the Plaintiff was paid 425 million won for the remaining trading amount according to the instant sales contract.

(6) Meanwhile, in light of the developments leading up to the determination of the sale price of the instant land, Kim○, the purchaser of the instant land, was offered a proposal to purchase KRW 15 million per square year by referring to KRW 15 million or KRW 16 million per square year, which was at the time of transaction on the instant land. In such cases, the Plaintiff demanded payment of KRW 35 million for the said amount due to the difficulty in removing the instant housing and withdrawing the lessee prior to the expiration of the period of time. Accordingly, the Plaintiff ultimately requested payment of KRW 35 million for additional costs, which is the total purchase price of KRW 1,025,00,000 (=15,000,000 + KRW 20,000 + KRW 20,000 per square year).

(4) 위 인정사실과 그 밖에 이 사건 변론에 나타난 당사자의 의사와 계약의 실질적 내용 등의 제반 사정, 즉, ① 이 사건 토지에 관한 매매계약 전부터 매수인인 김○○은 이 사건 주택의 매수를 원하지 아니하여 원고가 이 사건 매매계약에 부수하여 이 사건 주택의 철거의무를 부담하게 된 점, ② 원고는 자신이 이 사건 주택의 철거의무를 부담하게 되자 위 매매계약 체결을 전후하여 이 사건 주택에 거주하는 임차인들에게 자신의 금원으로 임대차보증금을 반환하고 모두 퇴거시킨 점, ③ 특히 원고가 이 사건 매매계약 후 얼마 되지 아니하여 철거를 담당하는 회사와 사이에 이 사건 주택을 철거하기 위한 별도의 계약을 체결하였으며, 비록 이 사건 토지에 관한 소유권이전등기의 시기가 도과하였지만 2004. 2. 17.경 이 사건 주택이 실제로 철거된 점, ➃ 이 사건 주택이 소득세법상 고가주택의 범위(시가 6억원 초과 주택)에 포함도는 것으로 보아야 한다고 하더라도 이 사건 주택은 건축 후 10년 가까이 된 낡은 주택으로서 그 자체만의 평가가격은 높지 아니할 뿐만 아니라 매수인인 김○○의 다른 목적에 의하여 이내 철거될 운명이었던 점, ⑤ 원고와 김○○ 사이의 이 사건 매매가격인 평당 15,300,000원은 이 사건 매매계약 무렵(2003. 1. 1. 기준)의 이 사건 토지에 관한 기준 시가인 ㎡당 171만원(=평당 약 564만원)에 비하여 2〜3배 정도 비싼 가격이나, 통상적으로 실수요자 사이에 거래되는 부동산의 가격은 기준시가를 상회하는 것이 일반적인 점, 또한 이 사건 주택에 관한 과세표준인 76,782,120원은 위 매매가격에 비하여 상당히 낮은 비율의 가격으로서 이 사건 토지의 매매가격을 결정하는 데에 별다른 영향을 미친 것으로 보이지 아니한 점(피고는 이 사건 주택에 관한 소득세법에 의한 기준시가가 189,248,400원이라고 주장하나, 이를 기준으로 하더라도 위 금액은 고가주택의 기준이 되는 실거래가 6억원에 여전히 모자라는 금액이며, 더욱이 이 사건 토지가격에 비하여는 상당히 낮은 비율의 금액이다)에 비추어 원고와 김○○이 이 사건 토지에 관한 매매가격을 산정함에 있어서 이 사건 주택으 가치나 가격을 반영하였다고 보기에 부족한 점, ⑥ 원고는 단지 매수인인 김○○의 주택 신축에 따른 편의를 제공하기 위하여 잔대금을 지급받기 전에 이 사건 토지에 관하여 소유권이전등기를 마치게 되었을 뿐 원고에게 이 사건 부동산의 매매과정에 양도소득세를 탈루하기 위한 의도가 숨어 있었다고 볼만한 자료가 없는 점(이 사건 주택에 관한 소유권이전등기가 당사자의 의사와 무관하게 그 업무를 담당하는 법무사의 착오로 매수인인 김○○ 앞으로 이전되었다가 곧바로 원고 앞으로 환원된 점에 비추어 보면 더욱 그러하다) 등을 종합하면, 원고와 김○○ 사이의 이 사건 매매목적물은 이 사건 토지에 한정되었다고 봄이 상당하고, 이와 달리 원고가 이 사건 매매계약시 계약금으로 통상의 경우보다 많은 금원을 수령하였다거나 이 사건 주택의 철거 전이나 매매잔대금이 모두 지급되기 전에 이 사건 토지에 관한 소유명의가 매수인 앞으로 선이전되었다고 하여 달리 볼 것이 아니며, 그 밖에 이 사건 매매대금을 이 사건 주택을 포함한 이 사건 부동산 전체의 가격으로 보기에 충분한 자료가 없다.

(5) Therefore, since the Plaintiff and Kim ○○ concluded the instant sales contract with only the instant land as the object of sale, the Defendant deemed that the instant housing and its appurtenant land were transferred, and thus, the instant disposition imposing capital gains tax on the basis of the actual market price of the instant land is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted on the ground of its reasoning, and the judgment of the court of first instance is unfair on the ground of its conclusion, so it is so decided as per Disposition by the assent of all participating Justices on the revocation of the plaintiff's appeal and the revocation of the disposition