Whether the issue rent does not correspond to other income under Article 21 of the Income Tax Act

In light of the fact that the possession of the site at issue in the judgment is the legitimate possession and use, and the registration titleholder is the building owner, and the legal superficies is established between the claimant who received the rent and the registration titleholder, etc., the key point is that the land rent is deemed as the land rent for legal superficies, and thus falls under the subject of Article 21 of the Income Tax Act.

Article 21 of the Income Tax Act

2014Guhap3686 global income and revocation of disposition

AA

The director of the tax office.

December 4, 2014

January 29, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

Defendant’s imposition of KRW 000,000 on the Plaintiff on April 5, 2013, as global income tax for the year 2007.

Sector shall be revoked.

1. Details of the disposition;

A. The Plaintiff, BB, and CCC (hereinafter referred to as the “Plaintiff and two other persons”) were the Plaintiff and CCC at the voluntary auction procedure at the Seoul Central District Court No. 2000 other, around 15259, on the land on the 1355-8, 9, 10, 114 lots of land (total size 1,547.7m2; hereinafter referred to as “instant land”) in Seocho-gu Seoul Central District Court, Seocho-gu, Seocho-gu, Seoul, 135-8, 9, 10, and 114 lots of land (total size 1,547.7m2; hereinafter referred to as “the instant land”). The Plaintiff and CCC were the co-owners at each auction on the 1/4

B. On the ground of the instant land at the time, the Central Loyal Officetel (hereinafter referred to as the “instant officetel”) is limited to the instant officetel.

C) On March 2003, the plaintiff et al. filed a claim suit against the plaintiff et al. against the plaintiff et al. against the plaintiff et al., and filed a claim suit for damages equivalent to the usage fees of this case against the plaintiff et al., the Seoul Central District Court 2003 Gahap00000, and the above court decided on July 13, 2006 that the plaintiff et al. paid rent to the plaintiff et al. on the ground that the plaintiff et al. of this case had legal superficies under Article 366 of the Civil Code, and both parties appealed against the above judgment.

C. Since then, around May 2007, 2007, the appellate court of a claim suit, such as the above rent, etc., and 2 others.

On September 8, 2008, the appellate court concluded that: (a) the Plaintiff and CCC received each share of the instant land at KRW 000, BB00 for the transfer price; (b) the Plaintiff and CCC agreed to receive KRW 000 for the land use from March 6, 2001 to the time of transfer as the land rent for the said land use (hereinafter “instant issues income”); and (c) the instant appellate case was adjusted as agreed upon on September 8, 2008 when the said agreement was partially implemented.

D. According to the above agreement, the Plaintiff received the sale price and the rent for the portion of the instant land 1/4, and paid the transfer income tax for the sale, but did not return and pay the total income tax on the portion of the said land.

E. The Defendant is the land rent that the key income of this case that the Plaintiff received is the consideration for the establishment of statutory superficies.

On April 5, 2013, considering that it falls under "other income under Article 21 (1) of the Income Tax Act", it was corrected and decided that the Plaintiff was 000 won of the global income tax reverted to the year 2007 (hereinafter "the disposition in this case").

F. The Plaintiff appealed and filed an appeal with the Tax Tribunal on July 4, 2013, but was dismissed on October 24, 2013.

Facts without any dispute, Gap's Nos. 1, 2, 7, and Eul's No. 1 through 3 (including Serials), the purport of the whole pleadings.

2. Whether the instant disposition is lawful

(a) Basic facts;

(i)DD is the owner of the instant land from the competent authority around July 27, 1989.

At around October 1989, the building of this case was built and transferred to EE all the rights, such as the ownership of the land and the building permit for the building of this case, after obtaining a new building permit for business facilities, officetels, reinforced concrete building for the use of neighborhood living facilities, and building for 20 stories above ground (hereinafter “the building of this case”).

SheE shall complete the registration of transfer of ownership in its name with respect to the above land around October 5, 1989;

같은 해 12. 19.경 신축할 위 건물에 관하여 그 명의로 건축주 명의변경을 한 후 ㅇㅇ건설 주식회사와 공사도급 가계약을 체결하고, 그 무렵 위 건물 공사현장에 위 건물신축 규모나 공사 내용에 관한 안내판을 설치한 뒤 본격적인 공사에 착수하여 1990.3.경까지는 이미 지하 4층의 터파기 공사까지 마쳤다.

【EEE”, while carrying out the new construction of the instant building, divided the said building into about 180 buyers from the beginning of November 1989 to August 13, 1992, and received 00 billion won in total from the buyers, among the sales price, the down payment and intermediate payment. The content of the said sales contract is to allow the buyers to move into the building that received each sale by November 30, 1991, and if the completion inspection of the said building is completed, the ownership registration of the co-ownership share of the said building and the site was completed.

x. However, by August 17, 1992, EE proceeds from the building of this case by 85%.

In Kin, the construction of the building was suspended due to the escape and escape of the building, and the buyers of the building were organized by the Central Committee on the Management of Loyyal Office Officetel (hereinafter referred to as the "Nyyal Office") with FF as its chairperson in order to solve various problems arising from the default of the EE and to protect their property rights and interests.

(v) the FF demanded EE to transfer all rights to the construction of the said new building to the buyer in order to carry out the remaining construction and secure the buyer’s rights. However, the EE demanded the buyer to acquire the debt equivalent to KRW 000,000,000, borrowed from the said office site for the transfer price, and it is impossible to obtain the consent to the change of the owner’s name. When filing a lawsuit against EE for the change of the owner’s name, the FF reported the place of delivery for EE to the buyer’s office, and notified the buyer’s office to the buyer’s office, and changed the name of the owner of the new building from E from the court to the buyer’s office after receiving documents such as duplicate of the register from the buyer’s office. The buyer completed the new construction of the said building on June 1993 and completed the construction of the building on December 4, 1993 and completed the registration of ownership transfer from the buyer’s office to the buyer’s office.

⑹ 한편, 이 사건 토지에 관하여 1989. 12. 18. 근저당권자 ㅇㅇㅇ, ㅇㅇㅇ, 채무

자 EEE, 채권최고액 0000원인 근저당권설정등기가, 1990. 3. 5. 근저당권자 ㅇㅇㅇ, 채무자 EEE, 채권최고액 0000원인 근저당권설정등기가, 같은날 근저당권자 ㅇㅇㅇ, 채무자 EEE, 채권최고액 0000원인 근저당권설정등기 등이 마쳐졌고, 이후 EEE가 1990. 6. 20.경 위 1989. 12. 18.자 근저당권부채무를 모두 변제하였으나 그 근저당권설정등기를 말소하지 아니하고 있던 중, 1991. 11. 30. ㅇㅇㅇ는 EEE에게 ㅇㅇㅇ 명의로 0000원을 대여하였고 이 대여금의 담보를 위하여 EEE와 사이에 위 1989. 12. 18.자 근저당권설정등기를 유용하기로 합의를 한 후 ㅇㅇㅇ, ㅇㅇㅇ 등으로부터 위 유용에 대한 동의를 받았다.

⑺ 이후 근저당권자인 ㅇㅇㅇ이 2000. 4. 3.경 이 사건 토지에 관하여 서울중앙지방법원 2000타경00000호로 임의경매를 신청하여 그 경매절차가 개시되었는데, 원고 외 2명이 위 경매절차에서 위 토지를 대금 0000만 원에 낙찰받아 2001. 3. 6. 그 낙찰대금을 완납함으로써 위 토지의 소유권을 취득하였다.

Facts that there is no dispute over recognition, Gap's 3 through 9, Eul's 2 (including branch numbers), the purport of the whole pleadings, and the purport of the whole pleadings

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Judgment on the Plaintiff’s assertion

(1) As to the assertion that the owner of an officetel is not the owner

㈎ 원고의 주장요지

The remaining 150 households, excluding one household among the 152 households of the instant officetels 152 households, were registered as preservation council under the name of the buyer, and thereafter the registration of ownership transfer was completed in the name of each buyer. According to the judgment of the Seoul District Court 98Gahap0000, the registration of ownership transfer for the instant building was revealed to be invalid, and the registration of ownership transfer based on the invalid preservation registration is also null and void. Thus, the instant officetels occupant is not the owner of each officetel, but the legal superficies established between the landowner and the building owner is not generated. Accordingly, the instant disposition is unlawful, since the Plaintiff was paid damages for illegal possession, not for the payment of rent based on legal superficies from the above officetels occupant, and thus, the instant disposition is unlawful.

㈏ 판단

Land and the building on the ground are different owners due to an auction of the mortgaged property and the building on the ground.

In a case where the owner of a building who acquired legal superficies on land transfers the building without filing a registration of the establishment of legal superficies, barring any special circumstance, it shall be deemed that there was an obligatory contract for the transfer of the superficies along with the building, barring any special circumstance, and thus, the owner of the building is obligated to comply with the procedure for the registration of the transfer of the superficies to the transferee of the building after completing the registration of the creation of the superficies. Therefore, the transferee of the building is entitled to claim for the implementation of the procedure for the registration of the creation of legal superficies against the owner of the land who was the owner of the building by subrogationing the transferor of the building in succession (see Supreme Court Decision 80Da00, Sept. 8, 1981). A landowner obligated to register the establishment of

According to the above facts, the occupants of the instant officetel were originally owners of the instant land and their land

It is recognized that the plaintiff is the owner of an officetel from Kim Ho-ho, the owner of the building, or the transferee or transferee of the officetel in succession. Thus, the plaintiff cannot claim damages for the illegal possession of the land of this case against the occupant of the above officetel. Thus, this part of the plaintiff's assertion is without merit

With regard to the assertion that Dodar mortgage utilization agreement does not establish legal superficies

㈎ 원고의 주장요지

Until December 18, 1989, when acquiring the instant land by the effect of the right to collateral security on the instant land, EE is not entitled to acquire the legal superficies on the instant land, since the construction of the instant officetel was not carried out to the extent that the type and type of the instant building could have been anticipated, and as regards EE which is a party to the utilization agreement, the validity of the registration of creation of a neighboring mortgage on December 18, 1989 can be asserted. Therefore, EE cannot be allowed to claim the legal superficies on the instant land when acquiring the instant land by the effect of the right to collateral security on December 18, 1989. Therefore, the purchaser of the instant officetel from EE cannot claim the legal superficies.

㈏ 판단

The provisions of statutory superficies under Article 366 of the Civil Code shall be adjusted between the rights to use a mortgage and a building.

꾀한다는 공익상의 목적에 의하여 지상권 설정을 강제하는 강행규정으로서 당사자 사이의 합의에 의하여 지상권 성립을 배제할 수는 없는바, ㅇㅇㅇ와 EEE 사이의 위 1989. 12. 18.자 근저당권설정등기에 대한 유용합의를 한 1991. 11. 30. 당시에는 지하터파기 공사가 상당히 진척되었고, 공사 규모를 알리는 공사현황판 등을 통하여 법정지상권 성립을 인정하기 위한 전제로서 신축 중인 위 건물의 종류・외형 등을 충분히 짐작할 수 있을 정도로 공사가 진행되었던 사실은 앞서 본 바와 같다. 따라서 이와 같은 시점에서 ㅇㅇㅇ와 EEE 사이의 근저당권설정등기 유용합의로 지상권 성립을 배제할 수는 없다고 봄이 상당하다(덧붙여 위 유용합의를 한 1991. 11. 30. 무렵에는 ㅇㅇㅇ호와 EEE 모두 이 사건 오피스텔의 대부분이 분양된 상태임을 인식했다고 봄이 상당한바, 법정지상권 성립을 배제시켜 수분양자들의 지위를 해하는 내용의 근저당권 유용합의는 사회상규에 반하는 무효의 합의로 볼 여지도 있다). 따라서 이 부분 원고의 주장 역시 이유 없다.

Then, as to the argument that the land rent of the legal superficies is not other income

㈎ 원고의 주장요지

The "establishment of superficies" under Article 21 (1) 9 of the Income Tax Act is between the superficiary and the settlor of superficies.

It should be interpreted to mean only by contract to establish superficies, and it should not be deemed that the establishment of legal superficies between the parties does not correspond to the intention of the parties.

㈏ 판단

(1) Article 21 (1) 9 of the Income Tax Act provides that local jurisdiction and superficies (in the underground or in the air);

Article 366 of the Civil Act provides that "money and valuables received by establishing or leasing a fixed right) shall be other income, and the main sentence of Article 366 of the Civil Act provides that "if land and a building on the ground belong to another owner due to an auction of mortgaged property, the owner of the land shall be deemed to have established superficies against the owner of the building." Thus, the above provision of the Income Tax Act does not expressly stipulate that only the superficies established by agreement between the parties shall be excluded, or that statutory superficies shall be excluded. ② The owner of the land and the building on the ground shall be able to estimate in advance that the statutory superficies shall be established if the owner of the land are separated by auction of mortgaged property. ③ The nature of the land subject to a claim against the owner of the building on the basis of statutory superficies is the cost for the use of the land, and it is difficult to regard it as non-taxable income, not other income. Therefore, this part of the plaintiff's assertion is without merit.

· As to the assertion that the imposition of penalty on the taxpayer is unlawful due to justifiable grounds

㈎ 원고의 주장요지

Around September 2007, the Plaintiff submitted a written agreement containing a land rent agreement when filing a report on the transfer income tax on the instant land. Around August 2008, the Plaintiff submitted a notice prior to the Defendant’s taxation and the Plaintiff’s explanatory materials, and the Defendant issued the instant disposition after five years from the date on which the Defendant did not give any notice of taxation on the land rent portion. There was justifiable reason for the Plaintiff’s failure to perform its obligations.

㈏ 판단

Article 26 of the former Framework Act on National Taxes (Amended by Act No. 9911, Jan. 1, 2010)

-2. Paragraph 1 Paragraph 2 of Article 2 provides that "where a taxpayer fails to file a tax base return by the statutory due date of return, a national tax may be imposed for seven years from the date on which the relevant national tax may be imposed, and the Plaintiff did not file a global income tax base report on the key income of this case as seen earlier. If a taxpayer does not file a tax base report, the tax authority may determine the tax base and tax amount including additional tax within the exclusion period of national tax imposition. Therefore, the imposition of additional tax cannot be deemed unlawful solely on the ground that the decision of the disposition authority was delayed. Therefore, the Plaintiff

D. Sub-committee

In full view of the facts examined above and the recognition, the key income of this case is Article 21 of the Income Tax Act.

The disposition of this case is legitimate because it constitutes "money and valuables received by establishing or lending a servitude or superficies under subparagraph 9 of Article 9 (other income)."

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

(c)