early 201J 2461 ( November 02, 2011)

It is legitimate to regard the time of acquisition as the time of taking over the collateral collateral obligation of the exchanged real estate and taking over its possession.

Considering that it is reasonable to view that a real right to dispose of an exchanged real estate is acquired by the acquisition of a real right to dispose of the exchanged real estate and the liquidation of the price thereof is performed in light of the fact that it takes over the collateral obligation created on the exchanged real estate and takes over the possession thereof, and thereafter the interior construction for the telecom business is commenced, and it cannot be deemed that there is

Article 98 of the Income Tax Act

2012Guhap820 Revocation of Disposition of Imposing capital gains tax

Ansan

Head of Sungnam Tax Office

September 21, 2012

October 12, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 000 against the Plaintiff on December 15, 2010 is revoked.

1. Details of the disposition;

A. On March 12, 2004, the Plaintiff entered into a contract on the exchange of land and inn building located in the Daejeon-gu Daejeon-dong 000-38 (in the name of Gangnam-gu at the time of registration of ownership transfer; hereinafter referred to as “the instant real estate”) owned by the Plaintiff, and in the Cheongbuk-gun of Gyeonggi-do, the Plaintiff entered into a contract on the exchange of 27,769 square meters in the name of Song-gu, Daejeon-gu, Daejeon-gu, Daejeon-do, Daejeon-do (hereinafter referred to as “the instant land”). On June 9, 2004, the Plaintiff succeeded to the obligation under the name of Song-B, which was secured by the collateral security established for the instant real estate, and then was handed over.

B. On May 25, 2007, when the Plaintiff did not complete the registration of ownership transfer for the instant real estate, the Plaintiff transferred the said real estate to XX Co., Ltd. (hereinafter referred to as “ XX”).

C. On December 1, 2010, the Defendant deemed that the Plaintiff transferred the instant real estate to XX KRW 000, and imposed capital gains tax on the Plaintiff on December 1, 2010 (including additional tax, and excluding the already paid tax amount of KRW 000, hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 23, 201, but was dismissed on November 2, 2011.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, Eul evidence 1, 2, and 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Defendant considered the time of acquisition of the instant real estate as June 9, 2004 and rendered the instant disposition. However, as at June 9, 2004, the remaining liquidation under the instant exchange contract was not made. As such, the Plaintiff should be deemed the time of acquisition of the instant real estate on February 25, 2009, which the Plaintiff completed the registration of ownership transfer with respect to the instant land to SongB pursuant to the instant exchange contract.

(2) The Plaintiff did not have the purpose of tax avoidance, and there are unavoidable circumstances where it is impossible to complete the registration of transfer of the instant real estate in its name, so the transfer of the said real estate should be excluded from the transfer of unregistered assets whose transfer income tax is excessive.

(3) Of 000 won received by the Plaintiff while transferring the instant real estate to XX, 000 won should be excluded from the transfer value of the said real estate as compensation for future business losses and artificial expenses.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) As to the acquiring time of the instant real estate

Article 162 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20720, Feb. 29, 2008; hereinafter the same) provides that the time of acquisition of assets shall be the date of liquidation of the price of the relevant assets in principle. If assets are transferred by a contract for the exchange of real estate, even if the transferor is prior to the transfer of the ownership transfer of the object to be acquired as the price for the transfer, the parties to the exchange contract have the obligation to complete the registration of ownership transfer at any time at the request of the other party, and at least between the parties to the exchange, it may be deemed that the liquidation of the price has been completed (see Supreme Court Decision 95Nu7475, Jan. 23, 1996).

In light of the above legal principles, comprehensively taking account of the witness evidence Nos. 3, Eul evidence Nos. 2 and 3, Eul evidence Nos. 5-1 to Eul evidence Nos. 5-3, the witness testimony of this case as to the real estate of this case: ① on June 9, 2004, the plaintiff acquired 00 won of the secured debt of SongB, which was secured by a collateral security right as to the real estate of this case, and received possession of the real estate of this case; ② on June 25, 2004, the plaintiff started the business after completing business registration as of June 25, 2004; ③ The plaintiff did not dispute the plaintiff's ownership of the real estate of this case, such as Song, from the time of transferring the real estate of this case to XX, the plaintiff's right to dispose of the real estate of this case is not justified in light of the facts that the plaintiff acquired the right to dispose of the real estate of this case at least 40 years.

(2) Whether capital gains tax can be deemed excluded from unregistered transferred assets subject to excessive capital gains tax

The purport that capital gains tax is imposed on unregistered transfer assets is to restrain and prevent real estate speculation, etc. in accordance with the transfer income tax, etc. or the transfer of assets without any payment of residual gains, etc. by a person who acquired assets without registering the acquisition at the time of transfer. Therefore, in the acquisition of the assets at the time of the acquisition of the assets, it is recognized that there is no purpose of speculation, such as tax avoidance or resale acquisition through the transfer of assets, etc. by the transferor, and that it is harsh to enforce the transfer of the assets to the transferor at the time of the transfer, in other cases, where it is deemed that the transfer of the assets is not registered at the time of the transfer, the former Income Tax Act (amended by Act No. 8825 of Dec. 31, 2007) and each subparagraph of Article 168(1) of the former Enforcement Decree of the Income Tax Act (see, e.g., Supreme Court Decision 2004Du9494, Oct. 28, 2005).

In the case of an exchange contract, the Plaintiff already completed the settlement of the price before transferring the instant real estate to XX, and acquired the said real estate. In the case of an exchange contract, if the transferor does not cooperate in the transfer registration procedure, the transferee can file a civil lawsuit against the transferor and complete the registration of ownership transfer.

However, in light of the fact that the Plaintiff did not file a lawsuit against the seller BB or the registered titleholder of Gangnam-gu or take legal measures, such as filing a claim for the registration of ownership transfer or filing an application for the prohibition of disposal for the preservation of such claim, it cannot be said that there was an inevitable circumstance that the Plaintiff did not evade the tax, such as acquisition tax, or that the registration of

(3) Transfer value of the instant real estate

Although the Plaintiff alleged that KRW 000 was paid 00 won for the instant real estate received from XX as compensation for human test expenses or business losses, etc., the Plaintiff did not submit any objective data to support this. Furthermore, in light of the fact that the tax authority did not make such assertion in the tax investigation or pre-trial proceedings, the Plaintiff may recognize the Plaintiff’s total amount of KRW 000 as the transfer value of the instant real estate. The Plaintiff’s assertion on this part is without merit.

D. Sub-committee

Therefore, since the transfer of the instant real estate constitutes the transfer of unregistered assets, the instant disposition that imposes capital gains tax by applying the heavy taxation rate equivalent to 70/100 of the tax base of capital gains is lawful.

3. Conclusion

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