Where the registration of transfer is completed before the balance liquidation, the time of transfer.

The case holding that the date of receipt of registration recorded in the register shall be deemed the date of transfer of assets where the registration for transfer of ownership is made before balance liquidation

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

1. The Defendant’s lawsuit against the Plaintiff on June 16, 1995 regarding the portion exceeding KRW 13,031,720 among the disposition of imposition of capital gains tax of KRW 17,734,710 against the Plaintiff is dismissed. 2. The remaining claims of the Plaintiff are dismissed. 3. The costs of lawsuit are assessed against the Plaintiff.

1. Details of the instant disposition

The following facts can be acknowledged in full view of each of the statements and arguments in Gap evidence 1, 2, 7, 8, and Eul evidence 1-1, 2, Eul evidence 2, and 6, and there is no counter-proof.

"가. 원고는 ㅇㅇ ㅇㅇ구 ㅇㅇ동 ㅇㅇ의ㅇ 지상 ㅇㅇ빌라 연립주택 ㅇ동 ㅇㅇ호 62.51㎡(이하제1 부동산'이라고 한다.)를 1987. 12. 17. 취득하였다가 이를 소외 전ㅇㅇ에게 매도하면서 1992. 10. 22. 서울지방법원 남부지원 ㅇㅇ등기소 접수 제49919호로서 위 전ㅇㅇ에게 소유권이전등기를 경료하여 주었다.", "나. 원고는 소외 승ㅇㅇ으로부터 ㅇㅇ시 ㅇㅇ면 ㅇㅇ리 ㅇㅇ의ㅇ 대 247㎡ 및 동지상 주택 36.09㎡(이하제2 부동산'이라고 한다.)를 매수하면서 이에 대하여 1991. 6. 29. 대전지방법원 ㅇㅇ등기소 접수 제19117호로서 원고 명의의 소유권이전등기를 경료하였다.",다. 이에 피고는 원고의 제1 부동산의 매도행위에 대하여 양도소득세 비과세 대상인 일시적인 1세대 2주택으로 볼 수 없다는 이유로 1995. 6. 16. 이 사건 양도소득세 금 17,734,710원을 부과하였다가, 1997. 2. 20. 제1 부동산이 국민주택 규모 이하에 해당함에도 이를 간과한 체 세율을 잘못 적용한 것을 발견하고 위 소득세 금액을 금 13,031,720원으로 감액 경정 결정하였다.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

원고는 1991. 4. 29. 소외 승ㅇㅇ으로부터 제2 부동산을 금 52,000,000원에 매수하면서 위 승ㅇㅇ의 요청에 따라 원고 명의로의 소유권이전등기만 1991. 6. 29. 경료하였을 뿐, 계약당일 계약금으로 금 5,000,000원을 지급하고, 같은 해 6. 7. 중도금으로 금 17,000,000원을, 같은 해 10. 26. 중도금으로 금 30,000,000원을, 1992. 9. 14. 잔금으로 금 700,000원을 지급하였으므로 실제 제2 부동산을 취득한 일자는 1992. 9. 14.이고, 따라서 제2 부동산를 취득한 후 1년 이내에 제1 부동산을 처분한 것이며, 따라서 원고의 제1 부동산의 양도행위로 인한 양도소득은 비과세 대상에 해당하므로 이 사건 부과처분은 위법하여 취소되어야 한다고 주장한다.

B. Relevant statutes

(1) Article 5 subparagraph 6 (i) of the Income Tax Act (amended by Act No. 4520 of Dec. 8, 1992; hereinafter the same shall apply) provides that one house for one household as determined by the Presidential Decree among the transfer income and the appurtenant land shall be exempted from taxation on any income accruing from the transfer of land within the area calculated by multiplying the area on which the building is built by the ratio as determined by the Presidential Decree by region.

(2) The main sentence of Article 15(1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 13802, Dec. 31, 1992; hereinafter the same shall apply) provides that Article 5 subparag. 6 (i) of the Act provides that one household comprised of the resident and his spouse together with the family members who make a living at the same address or same place of residence shall own one house in Korea and reside for three years or more. Article 6(1) of the Enforcement Rule of the same Act (amended by Ordinance of the Ministry of Finance and Economy No. 1900, Dec. 31, 1992; hereinafter the same shall apply) provides that Article 5 subparag. 6 (i) of the Act shall apply to the income accruing from the transfer of another house within one year from the date of the acquisition of the former house if the household having one house in Korea acquires another house before transferring the house for the purpose of moving the house.

(3) Meanwhile, Article 53(1)2 of the Enforcement Decree of the above Act provides that the date of receipt of registration entered in the registry, registry, list, etc. shall be deemed the time of acquisition and transfer of assets, if the registration of transfer of ownership (including registration and a statement of change of name) has been made before the price is settled.

C. Determination

(1) First, as seen earlier, the Defendant initially issued a disposition imposing KRW 17,734,710 of the transfer income tax of this case on June 16, 1995, but made a correction decision to reduce it to KRW 13,031,720 on February 20, 1997, and thus, in such a case, the subject of lawful appeal litigation is limited to the remaining portion of the first disposition that was not revoked, and there is no interest in filing a lawsuit against revocation of the part that was lawfully revoked by the correction decision, and thus, the lawsuit against the disposition imposing tax of the portion that was revoked by the correction decision and that was not nonexistent is unlawful.

(2) Next, even if the registration of ownership transfer has been completed prior to the payment of the balance as alleged by the Plaintiff, as seen above, the date of receipt of the registration recorded in the register shall be regarded as the time of acquisition and transfer of the asset, in case where the registration of ownership transfer was completed prior to the settlement of the price. The time of the Plaintiff’s acquisition of the real estate on the register is June 29, 191 and the time of the transfer of the real estate 1 was October 22, 1992, and it is extremely apparent that the Plaintiff’s transfer of the real estate 1 after about 1 year and 4 months have passed since the Plaintiff acquired the real estate 2, and therefore, the Plaintiff’s disposal of the real estate 1 cannot enter the scope of two houses of one household temporarily subject to non-taxation, and therefore, this part of the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the defendant's disposition of imposition of capital gains tax of KRW 17,734,710 against the plaintiff on June 16, 1995 exceeds KRW 13,031,720 as it is unlawful and dismissed. The plaintiff's remaining claims are dismissed as it is without merit, and the costs of lawsuit are assessed against the plaintiff as the losing party.