Tax Tribunal 2012west 4384

Whether the land subject to division of property is transferred and subject to additional taxes.

It corresponds to the transfer of land, and the time of transfer is the date of settlement of price, so it is owned by the plaintiff who is the owner at that time, and it is hard to see that there is a justifiable reason for not performing tax liability

2013Guhap52506 Revocation of Disposition of Imposing capital gains tax

The AA

The Director of the Pacific District Office

Intervenor joining the Defendant

D Kim D Kim

August 13, 2013

October 10, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of the capital gains tax OO on March 1, 2012 is revoked (the written complaint on March 8, 2012 is a clerical error).

1. Details of the disposition;

A. As to the OO-gu OO-dong 261-3, 300-1, 302-4, 302-7, O-dong 295-10, and O-dong 65-1 land (hereinafter “instant land”), the Plaintiff completed the registration of ownership transfer on September 24, 1986, and DD Corporation completed the registration of ownership transfer on the ground of “land expropriation on November 27, 2009”.

B. On December 30, 2009, the Defendant: (a) on March 1, 2012, assessed the amount of KRW OOO as the expropriation value, as the transfer value; (b) assessed the amount of capital gains tax on the instant land as the acquisition value; and (c) imposed KRW OOO and additional KRW OOOO on the instant land (hereinafter “instant disposition”).

C. On November 15, 201, the Plaintiff received a notice of pre-announcement of taxation from the dispatching Tax Office, and filed a request for pre-assessment review to the Defendant on January 2, 2012, but was non-adopted on February 23, 2012. However, upon receipt of an objection on July 3, 2012, the Plaintiff received a decision of rejection on October 4, 2010, but filed an objection on October 19, 2012, on the ground that “the tax Tribunal filed an objection after the lapse of 90 days from March 8, 2012, for which the notice of tax payment was served,” and filed the instant lawsuit on April 5, 2013.

[Ground of recognition] Evidence Nos. 1 through 3, Evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's assertion

As the Plaintiff had received a tax notice on March 8, 2012 and filed the instant lawsuit through the filing of an objection and a request for trial on July 3, 2012 after the lapse of 90 days from that date, it is unlawful because it did not go through legitimate procedures for a prior trial.

B. Determination

1) If the statement in Eul evidence No. 2 added the purport of the entire pleadings, a tax payment notice may be found to have been served on March 8, 2012 on the part of the plaintiff's apartment security guards who are apartment security guards, and the plaintiff was decided to dismiss an objection on July 3, 2012, and the plaintiff was decided to dismiss an appeal on November 19, 2012, and the lawsuit in this case was brought.

On the other hand, if Gap's evidence Nos. 1 and 4 added the purport of the entire pleadings, the plaintiff directly visited Song-gu's certificate on April 5, 2012 and re-issued a tax payment notice from the public official in charge; Jung-B can recognize the fact that he received the tax payment notice but the plaintiff was absent, and he stated that he was unable to deliver it because he was no family member; and the plaintiff and ParkCC were still pending a divorce lawsuit at that time.

2) Article 8 of the Framework Act on National Taxes provides that the document under tax-related Acts shall be served on the domicile, temporary domicile, place of business, or office of the title holder, and Article 12 of the same Act shall take effect from the time when the document to be served reaches the person to be served. Therefore, in principle, a tax payment notice shall take effect directly to the Plaintiff, the title holder. However, in the case of an apartment building which is an aggregate building, the right to receive the document shall have the right to receive the document (see Supreme Court Decision 98Du3679 delivered on May 15, 1998). However, in this case where there is no evidence to know the size of the apartment house residing in the Plaintiff, mail receipt status, or ordinary behavior of the apartment security guards, the document cannot be acknowledged as being delegated to the security guards with the right to receive the document. Considering the fact that the Plaintiff and the Plaintiff did not reside in the domicile during divorce proceeding between the Plaintiff and ParkCC, it is reasonable to deem the document to have been served directly by the Plaintiff.

Furthermore, since the plaintiff filed an objection or a request for trial with the lapse of 90 days from the plaintiff, this part of the defendant's assertion is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant land is the common property of the couple formed by divorce, and thus, the disposition imposing capital gains tax is unlawful, as the Plaintiff did not report capital gains tax because it was unaware of the acceptance of the instant land under Article 839-2 of the Civil Act. In addition, since the Plaintiff failed to report capital gains tax due to the lack of knowledge of the acceptance of the instant land, additional tax should be exempted (it seems to the purport that, although the Plaintiff’s assertion is unclear, the Plaintiff transferred the instant land to ParkCC as a division of property, and the ParkCC received the compensation for expropriation, capital gains tax following the expropriation

B. Relevant statutes

Attached Form. The entry in the relevant statutes is as follows.

(c) Fact of recognition;

1) On June 5, 2007, the Plaintiff and ParkCC are legal couple. On the instant land, ParkCC received a provisional disposition injunction (Seoul Family Court 2007 business group1080), and completed a provisional disposition registration, and filed a divorce and a lawsuit claiming division of property against the Plaintiff (Seoul Family Court 2007Dhap6321). On November 18, 2008, the Plaintiff divorced from the Seoul Family Court and ParkCC, and the Plaintiff was sentenced to the judgment that “The Plaintiff shall implement the procedure for registration of ownership transfer with respect to the instant land by division of property.”

2) The Plaintiff appealed against it (Seoul High Court Decision 2009Reuu358). On September 25, 2009, during the appellate trial, the land of this case was expropriated by the expropriation ruling on September 25, 2009, and accordingly, the Seoul High Court accepted part of the land of this case from October 27, 2009, and the remaining real estate was owned by the Plaintiff in co-ownership with others, and it became final and conclusive that the method of division of the real estate of this case to the Plaintiff to transfer the name of the former spouse to the Plaintiff to the former spouse is difficult to secure the propriety and fairness of division of property, on the ground that it is difficult to secure the propriety and fairness of division of property.

3) Meanwhile, on November 26, 2009, DD Corporation deposited OOOO on the instant land in Seoul Southern District Court, and completed the registration of ownership transfer on the instant land due to land expropriation on December 30, 209.

4) ParkCC received the deposit money of DD Corporation after provisionally seizing it.

[Ground of recognition] The evidence Nos. 2, 3, 6, Eul's evidence No. 1, and the purport of the whole pleadings

D. Determination

1) As seen in the above facts, in a divorce lawsuit between the Plaintiff and ParkCC, the instant land was subject to division of property, but the instant land was not divided in kind due to DD Corporation’s acceptance decision, but was divided into property at the price. Accordingly, the Plaintiff paid to ParkCC property division at the price. Although ParkCC received the deposit money for land expropriation, it cannot be said that ParkCC acquired the instant land itself.

In addition, the transfer of ownership through the expropriation of land constitutes a transfer of land (see Supreme Court Decision 95Nu13890, Dec. 22, 1995); the transfer time is the date of liquidation under Article 98 of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009) and Article 162 (1) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 22034, Feb. 18, 2010). Thus, as long as the Plaintiff is the owner of the instant land as of November 26, 2009, the person liable to pay capital gains tax shall be the Plaintiff.

Therefore, this part of the Plaintiff’s assertion of illegality of the instant disposition is without merit on the premise that ParkCC acquired the instant land through division of property.

2) Penalty taxes under tax law are administrative sanctions imposed in accordance with the tax law in order to facilitate the exercise of the right to impose taxes and the realization of tax claims where a taxpayer violates a return and tax liability under the tax law without justifiable grounds, and the taxpayer’s intention and negligence is not considered. However, if a taxpayer is deemed not to have been aware of his/her duty, and there is a justifiable reason to believe that it is unreasonable for the taxpayer to be unaware of his/her duty, or that it is unreasonable for him/her to expect the fulfillment of his/her duty, it may not be imposed (see, e.g., Supreme Court Decision 2004Du930, Nov. 25, 2005).

The Plaintiff’s failure to report the transfer income tax is deemed to have justifiable grounds for not expecting the Plaintiff’s failure to report the transfer income tax. In light of the fact that the Plaintiff was unaware of the fact of land expropriation, but the Plaintiff’s decision on land expropriation was made with respect to the land of this case during the period of the claim for property division between the Plaintiff and ParkCC, and the method of property division was changed from the spot division to the value division, and that such circumstance appears to have been sufficiently discussed during the trial process, it cannot be said that the Plaintiff did not know of the fact of land expropriation, and there was

4. Conclusion

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