Seoul Administrative Court 201Gudan16219 ( December 02, 2011)

National Tax Service Review and Transfer 2011-004 (201.04.08)

Even in case of expropriation, where the registration of ownership transfer is made before the date of settlement of price, the transfer date shall be the date of receipt.

In case of expropriation for public works, where the registration of ownership transfer is made before the price is settled, the date of receipt of the registration recorded in the register shall be deemed the date of transfer. Thus, this disposition shall be deemed the date of receipt of the registration of ownership transfer before the price is settled, and it shall be deemed legitimate and misleading that the expropriation does not fall

Article 98 of the Income Tax Act

Article 162 of the Enforcement Decree of Income Tax Act

2012Nu67 Revocation of Disposition of Imposing capital gains tax

Park XX

head of Sung Dong Tax Office

Seoul Administrative Court Decision 2011Gudan16219 decided December 2, 2011

May 2, 2012

May 23, 2012

1. The plaintiff's appeal is dismissed.

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

1. Purport of claim

The Defendant’s imposition of capital gains tax of 000 won and special rural development tax of 000 won against the Plaintiff on December 3, 2010 shall be revoked.

2. Purport of appeal

The part of the judgment of the court of first instance against the plaintiff seeking revocation below shall be revoked. The defendant shall revoke the disposition imposing penalty tax of KRW 000 among the disposition imposing capital gains tax of KRW 000 against the plaintiff on December 3, 2010.

1. Scope of the instant case

The Plaintiff filed a lawsuit against the Defendant seeking revocation of imposition of capital gains tax of KRW 000 (including additional tax) and special rural development tax of KRW 000,000, but the court of first instance dismissed the Plaintiff’s claim. Since the Plaintiff is dissatisfied with only the imposition of capital gains tax of KRW 000 among the judgment of the first instance court, the subject of this court’

2. Details of disposition;

The reasons why this Court is to be used for this part are as follows: 1. In addition, it is stated in the part of the "court of first instance" (from the second to the third third).

In addition, the Korea National Housing Corporation deposited 00 won increased by deposit of 00 won following the ruling on June 25, 2009, thereby compensating 74,527,350 won as compensation for expropriation of the housing shares and obstacles in this case.

After the second 18th anniversary of the date, the Korea Land and Housing Corporation (Korea Housing Corporation) deposited KRW 000 in the name of the plaintiff in the passbook.

O's third second (based on recognition) the phrase "Nos. 8, 9, and 12 of A" shall be added to the column.

3. Whether the disposition of this case is legitimate

A. The plaintiff's assertion

1) Since the Korea Land and Housing Corporation received 000 won deposited as compensation for the instant housing share as the last day of February 5, 2010, the time of the instant housing share transfer is February 5, 2010. The penalty tax portion out of the instant disposition under the premise that the time of transfer is 2009 is illegal.

2) The Plaintiff misleads the Plaintiff that the acceptance of the instant housing share is not a “transfer” under the Income Tax Act, and even if there is a prior notice system, the Defendant neglected to make it more than one year. The imposition of additional tax is unreasonable.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Article 98 of the Income Tax Act (amended by Act No. 10408, Dec. 27, 2010) provides that the time of acquisition and time of transfer of assets shall be determined by Presidential Decree in calculating gains from transfer of assets. According to Article 162(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010), the time of acquisition and time of transfer under Article 98 of the Income Tax Act shall be excluded from the case of each subparagraph, and the time of acquisition and time of transfer shall be settled as the date of liquidation of the price of the relevant assets. The above provisions separately stipulate cases where the time of acquisition and time of transfer are not considered as the date of liquidation of the price of the relevant assets under each subparagraph. To exclude taxpayers and identify taxable income based on a single standard, and to interpret and apply the same with the purpose of ensuring fair taxation (see, e.g., Supreme Court Decision 2002Du16265, Feb. 26, 2019).

Even in cases of expropriation under the Act on the Acquisition of Land, etc. for Public Works and the Compensation therefor, if the registration of ownership transfer is made before the settlement of the price, the date of receipt of the registration recorded in the register pursuant to Article 98 of the Income Tax Act and Article 162 (1) 2 of the Enforcement Decree of the same Act shall be deemed the date of transfer. According to the Plaintiff’s assertion, the date when the Korea Land and Housing Corporation pays the price for the instant housing portion on February 5, 2010. The date when the Korea Land and Housing Corporation receives the registration of ownership transfer due to expropriation of the instant housing portion on March 3, 2009 is as soon as possible. As such, the time of transfer of the instant housing portion is March 3, 2009. It is reasonable to impose penalty tax on the Plaintiff who has failed to report the transfer income tax on the date

2) Additional taxes may be imposed regardless of whether a taxpayer’s intent or negligence is a taxpayer, and there is no justifiable reason to believe that a taxpayer’s breach of duty is not attributable to the breach of duty (see Supreme Court Decision 2005Du10545, Apr. 26, 2007).

Even if the Plaintiff mispers the Plaintiff’s expropriation of the instant housing share is not a “transfer” under the Income Tax Act, and there was no special contact from the Defendant for a period of more than one year, there is no justifiable reason not to impose additional tax.

4. Conclusion

The appeal is dismissed.