Cho High-2018-west-814 (23 April 2018)

In calculating gains on transfer of assets under the Income Tax Act, the time of acquisition and transfer;

In calculating gains on transfer of assets under the Income Tax Act, the time of acquisition and transfer shall be the date when the price of the assets is settled as the date of liquidation of the price of the assets concerned, and the time when the actual ownership is acquired by paying the remaining price actually.

Article 98 of the Income Tax Act (Time of Transfer or Acquisition)

Article 26-2 of the Framework Act on National Taxes (Period for Excluding Assessment of National Taxes)

2018Gudan15161 Revocation of Disposition of Imposing capital gains tax

Park ○

a) the Director of the Tax Office

June 18, 2019

August 27, 2019

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 for the year 2016 against the Plaintiff on June 3, 2017 is revoked.

1. Details of the disposition;

A. On August 12, 2008, the Plaintiff, which acquired on April 29, 2004, agreed to transfer 50% of the shares of the instant real estate to Kim △△△△△ (hereinafter the instant agreement), as follows, on August 12, 2008, with respect to the land and above-ground buildings (hereinafter the instant land site and building), x-dong x-dong 00-00 and above-ground buildings (hereinafter the instant real estate).

1. The method of Kim △△△△ to pay the Plaintiff KRW 2.75 billion to the Plaintiff as the acquisition price.

(a)payment in cash of KRW 61,6750,00;

B. The Plaintiff received the instant real estate from a financial institution as collateral, and KRW 1.9 billion from the financial institution, shall be repaid by Kim △△△ (the interest shall be paid by Kim △△ up until repayment).

C. As of the date of this Agreement, 23,3250,000 won, 50% out of the lease deposit of 46,500,000 won as of the date of this Agreement, shall be refunded to the lessee by Kim △△△△△△△

D. The payment method under paragraph (a) shall be made by paying KRW 260 million as the down payment day contracted, and the intermediate payment of KRW 5675 million as of September 30, 2008, and the remainder of KRW 300 million as of October 31, 2008: Provided, That if the transferor does not perform this contract, the amount of the down payment shall be double, and if the transferee does not perform it, the transferee shall not claim the return of the down payment, and shall not file a civil or criminal objection thereto.

2. As to the portion of one half of the instant real estate, the Plaintiff shall grant Kim △△△△ as a mortgagee the registration of creation of a mortgage and provisional disposition prohibiting the disposal of the mortgage amount of KRW 1.2 billion to the maximum debt amount.

3. The Plaintiff and Kim △△△△ shall distribute 230,030,000 won per month from the lease income of the instant real estate at the present time, each of 50% of them.

4. The Plaintiff’s bonds and obligations related to the instant real estate prior to the payment date of the remainder related to the instant agreement shall be liquidated.

5. After the remainder payment date of this Agreement, all rights and obligations relating to the instant real estate are jointly borne by the Plaintiff and Kim △△△△.

6. The Plaintiff and Kim △△△ shall settle the accounts, including the distribution of rents, on the fifth day of the following month: Provided, That if the fifth day is a public holiday, the following day shall be the next day, and the remainder, other than the interest on loans, which the Kim △△ has to pay to Kim △△△

7. In the event that the amount of the rent revenue under paragraph (3) brought up by Kim △△△ to the Plaintiff is difficult to cover the interest on the loan under paragraph (1) due to unexpected circumstances, such as natural disasters and emergency situations, the Kim △△△△△ shall immediately pay the shortage to the Plaintiff. If the shortage is delayed for at least six months, this agreement shall be automatically terminated. In this case, Kim △△△△△△ shall waive all the rights to the share of 50% of the instant real estate without any condition, and the cash amount of KRW 616.75 million paid to the Plaintiff at the time of the agreement, shall be confiscated by the Plaintiff as a penalty, and Kim △△△△△△

8. In the event that the instant real estate expenses, including taxes and public charges, were incurred, the Plaintiff and Kim △△△ shall jointly bear the expenses.

9. The Plaintiff and Kim △△△ may not sell the instant real estate at a price not exceeding KRW 75 million per square year: Provided, That this shall not apply where agreement is reached with Party A, and where the sale of the real estate is possible above the above amount, the Plaintiff and Kim △△△△ may sell the entire real estate without the consent of the other party.

11. The Plaintiff may, if necessary, borrow the instant real estate within the scope of 1.9 billion won, other than the 1.9 billion won, which △△△△ in the redemption key, as security. In this case, Kim △△△ shall temporarily terminate the provisional disposition prohibiting the registration of the establishment and the provisional disposition prohibiting the disposal of the establishment of the neighboring △△△△△△△△△△, and then,

13. It shall distribute to a third party the remaining amount excluding all the expenses, such as the capital gains tax anticipated at the time of selling the real estate in this case, and then settle it later: Provided, That the capital gains tax shall be limited to the excess of 4 billion won.

나. 김△△은 이 사건 약정 무렵 이◇◇, 방●●, 박▲▲, 김◆◆(이하 위 4명과 김경원을 함께 지칭할 때에는 김△△ 외 4인이라 한다)과 사이에 아래와 같은 내용의 약정(이하 이 사건 제2약정이라 한다)을 하였다.

Real Estate Indication: Dongdaemun-gu Seoul xdong 000-00

In taking over 50% of the shares of the above real estate as of August 12, 2008 as a separate agreement (the first agreement of this case) with respect to the acquisition of the above real estate as of August 12, 2008, the parties to this agreement, among the parties to the agreement, have entered into a contract with Kim △△△ as the assignee, which shall enter into an agreement

:

The acquisition price for shares of 50% of the above real estate in Paragraph 1 shall be KRW 2.85 billion: Provided, That the acquisition price for the above real estate shall be KRW 1.9 billion, KRW 466.5 million, cash of KRW 71,6750,000,000 (including KRW 1.9 billion, the real estate consulting cost);

Of the acquisition price referred to in paragraph (2) 1, each share shall be as follows:

The following:

1. approximately 8% of the KRW 60,000,000 for Kim △△△△; and

2. Up to 28% of the total amount of KRW 200,000,000: and

3. 방●●, 박▲▲ 336,750,000원 약 47%

4. 김◆◆ 120,000,000원 약 17%

The parties to this Agreement in paragraph (3) shall pay each amount of investment in accordance with the shares in paragraph (2), and shall be allotted and paid in proportion to each share before the repayment of the existing loan.

C. On October 31, 2008, Kim △△△△, in accordance with the instant arrangement, paid KRW 61,6755,000 to the Plaintiff by October 31, 2008. From December 2008, he shared interest on the instant real estate loans and received the rent of the instant real estate, and among the Kim △△ and four others, he distributed the burden and income in proportion to the ratio set forth in the instant arrangement. Kim △△△ did not complete the registration of transfer of ownership on the instant real estate portion, and set the right to collateral security (the maximum debt amount) equivalent to the maximum debt amount of the instant real estate.

D. On January 8, 2016, the instant real estate was transferred to Kim bb, and Shin C, KRW 5.27 billion, and the ownership transfer registration accordingly was completed. On the same day, the registration of the establishment of a neighboring mortgage was cancelled where the Plaintiff was made with the Plaintiff as the debtor on the instant real estate. At around that time, the Plaintiff paid the remainder of the amount calculated by deducting the loan of KRW 1.9 billion and other expenses, which was to be repaid by Kim △△△ pursuant to the instant agreement, from KRW 2.635 million, from the amount of KRW 1.5 billion, the Plaintiff paid to the Nonindicted △△△△△ and the Plaintiff in installments according to the share ratio under the instant agreement.

E. On October 31, 2008, the Plaintiff received 61,6750,000 won from the Kim △△△△△△△△ on October 31, 2008 pursuant to the instant agreement, and transferred the remainder of 1/2 shares to Kim bb, and Shin c, on January 18, 2016, and subsequently scheduled the transfer value of the remainder of 1/2 shares as KRW 2.635,000,000,000,000,000 won for the acquisition value, and KRW 180,000,000,000,000,000 won for the remainder of 1/2 shares.

바. 피고는 2017. 3. 22.경부터 2017. 4. 29.경까지 원고에 대한 양도소득세 조사(이하 이 사건 조사라 한다)를 거쳐, 김△△의 이 사건 제1약정 제1의 나항에서 정한 대출금 상환의무가 2016. 1. 8. 비로소 이행되었으므로 그때 이 사건 지분의 양도가 완료되었다고 보아, 2017. 6. 13. 원고에게 이 사건 부동산 전체에 대하여 양도가액 52억 7,000만 원, 취득가액 37억 6,700만 원, 양수인은 신bb(25%), 김cc(25%), 김△△(4%), 이◇◇(24%), 방●●・박▲▲(23.5%), 김◆◆(13.5%)로 하여 계산한 양도소득세 447,678,360원을 부과하는 처분(이하 이 사건 처분이라 한다)을 하였다.

G. The Plaintiff filed the instant lawsuit following the filing of an objection and the pre-trial procedure by the Tax Tribunal.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 7, 8, 11 through 13, Eul evidence Nos. 1, 3, 4 and 5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

⑴ 김△△이 이 사건 제1약정에서 정한 '잔금' 3억 원의 지급을 완료한 2008. 10. 31. 이 사건 지분은 김△△에게 양도되었고, 김△△은 그 중 일부를 이◇◇, 방●●, 박▲▲, 김◆◆에게 전매하였다가 이◇◇(24%), 방●●・박▲▲(23.5%), 김◆◆ 외 4인이 2016. 1. 8. 자신들의 지분 전부를 김bb, 신cc에게 다시 전매한 것이다. 2008. 10. 31.을 기준으로 계산하면 이 사건 처분 당시 이 사건 지분에 대한 양도소득세 부과제척기간 7년이 도과하였음이 역수상 명백하다. 그럼에도 피고는 이 사건 지분이 김경원에게 양도된 시점을 2016. 1. 8.로 보고 이 사건 지분을 포함한 이 사건 부동산 전부에 대한 양도소득세를 원고에게 부과한 잘못이 있다.

D. On August 12, 2008, the Defendant made an investigation by expanding the entire real estate of this case to newbb and Kim C on January 8, 2016 without justifiable grounds while giving prior notice as the object of the transfer of the instant shares to Kim △△△△△ on August 12, 2008. The instant disposition imposing capital gains tax on the Plaintiff based on such unlawful investigation is unlawful.

B. Determination

(1) The time of transfer of share in this case

㈎ 소득세법 제98조는 자산의 양도차익을 계산할 때 그 취득시기 및 양도시기는 대금을 청산한 날이 분명하지 아니한 경우 등 대통령령으로 정하는 경우를 제외하고는 해당 자산의 대금을 청산한 날로 한다고 규정하고, 소득세법 시행령 제162조 제1항 제1호는 대금을 청산한 날이 분명하지 아니한 경우에는 등기부・등록부 또는 명부 등에 기재된 등기・등록접수일 또는 명의개서일을 그 취득시기 및 양도시기로 하도록 규정하고 있다(위 소득세법 시행령 규정은 2001. 12. 31. 대통령령 제17456호로 개정되기 전에는 '매매계약서에 기재된 잔금지급약정일'을 취득시기 및 양도시기로 하되 잔금지급

Where the date of agreement is not confirmed or the period from the date of receipt of the balance payment agreement entered in the sales contract to the date of receipt of the registration is more than one month, the registration is stipulated as the date of receipt of the registration entered in the register, register, or list, but thereafter the amendment has been made thereafter. Here, the date of settlement of the price refers to the time when the actual ownership is acquired by paying the remaining amount (see Supreme Court Decision 98Du2669, Oct. 26, 199).

Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 1520, Dec. 19, 2017) provides for the exclusion period of imposition of national taxes. Article 12-3(1) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Act No. 1520, Feb. 12, 2019) provides for the exclusion period of imposition of national taxes where a taxpayer evades a national tax, obtains a refund or deduction by fraudulent or other unlawful means, for ten years from the date on which the national tax is assessable (Article 12-3(1) of the former Enforcement Decree of the Framework Act on National Taxes (amended by Act No. 29534, Feb. 12, 2019).

Article 110 (1) of the former Income Tax Act (amended by Act No. 15225, Dec. 19, 2017) provides that "a resident with capital gains in the relevant taxable period shall report the tax base to the head of the district tax office having jurisdiction over the place of tax payment, as prescribed by Presidential Decree, from May 1 to May 31 of the year following the relevant taxable period, in the case of national taxes, the following day of the deadline for filing a return on the tax base and amount of national taxes or the deadline for filing a return on the tax base and amount of national taxes."

㈏ 이 사건에서 이 사건 지분의 양도시기를 2008. 10. 31.로 보고 원고가 주장하는 7년의 부과제척기간을 적용하는 경우(피고는 제척기간에 대해서 별다른 주장을 하지 않고 있다) 이 사건 처분은 양도소득세를 부과할 수 있는 2009. 6. 1.부터 7년이 도과하여 부과한 결과가 된다. 따라서 이 사건 지분의 양도시기에 대하여 보건대, 앞서 본 사실관계 및 증거에 의하여 인정되는 아래의 사정에 비추어 볼 때, 이 사건 지분의 양도시기는 2016. 1. 8.로 봄이 상당하다.

① Although Kim △△△ decided to repay the loan at the first agreement of this case, it is not the assumption of the Plaintiff’s obligation, but the Plaintiff’s obligation still remains, and the Defendant assumes the obligation of repayment in relation to the Plaintiff. In light of the fact that the amount of the loan the Defendant decided to repay accounts for 69% of the transfer price of equity in this case, it is difficult to view that Kim △△△△△ completed the payment of the “ residual amount” as stipulated in the first agreement without actually repaying the above loan, and thus, it is difficult to view that Kim △△△△ completed the performance of the compensatory benefit of the share in this case by social norms.

② While considering that the instant shares were transferred on October 31, 2008, the Plaintiff responded to the purport that, at the time, Kim △△△△△ did not complete the registration of transfer of ownership with respect to the instant shares, the title of the court, stating the reason why the transfer income tax was not reported and paid at the time. Such Plaintiff’s reply can be deemed to have voluntarily disclosed the Plaintiff’s perception that the implementation under the instant first agreement was not completed on October 31, 2008. While the Plaintiff asserted to the purport that considering the possibility of rescission or cancellation of the instant first agreement, it is difficult to believe that such circumstance alone did not report and pay transfer income tax for at least seven years.

③ In light of the fact that the instant arrangement does not include all the details implementing the ownership transfer registration procedure in the Kim △△△△△△, and only the registration of the establishment of a neighboring △△△△△ in the Kim △△△△△△△, etc., the instant arrangement appears to have determined the restrictions on disposal, the allocation of revenue and expenses, etc., until the settlement method and settlement is completed, on the premise that the Plaintiff acquired the instant shares, and that the ownership of the instant shares would settle the remainder of profits after deducting the expenses including the capital gains tax, if the Plaintiff owns and satisfies certain conditions. In this regard, the instant arrangement is based on the premise that the capital gains tax following the transfer of the instant real estate would be imposed in the future on the Plaintiff.

④ The Defendant calculated the transfer value of the instant real estate as KRW 5.27 billion, which is the value sold to Kimbb and Shinc, and according to this, it appears that the transfer value of the instant shares is calculated as KRW 2.635 million. The Plaintiff’s transfer value of the instant shares to Kim △△△△△ pursuant to the instant first agreement is KRW 2.75 billion, and thus, the Defendant calculated the said value insufficiently. However, since the tax amount imposed on the Plaintiff by calculating the transfer value is less than the tax amount to be imposed actually, it is difficult to view that the instant disposition should be revoked unlawfully.

She Whether the investigation of this case is legitimate

㈎ 구 국세기본법(2017. 12. 19. 법률 제15220호로 개정되기 전의 것) 제81조의7 제1항은 세무공무원은 세무조사를 하는 경우에는 조사를 받을 납세자에게 조사를 시작하기 10일 전에 조사대상 세목, 조사기간 및 조사 사유, 그 밖에 대통령령으로 정하는 사항을 통지하여야 한다고 규정하고, 구 국세기본법 제81조의9 제1항은 세무공무원은 구체적인 세금탈루 혐의가 여러 과세기간 또는 다른 세목까지 관련되는 것으로 확인되는 경우 등 대통령령으로 정하는 경우를 제외하고는 조사진행 중 세무조사의 범위를 확대할 수 없다고 규정하면서 같은 조 제2항은 제1항에 따라 세무조사의 범위를 확대하는 경우에는 그 사유와 범위를 납세자에게 문서로 통지하여야 한다고 규정하고 있다.

㈏ 갑 제5호증, 을 제11, 12호증의 각 기재 및 변론 전체의 취지를 종합하면, 피고는 원고가 이 사건 부동산 중 이 사건 지분을 제외한 나머지 지분에 대하여만 양도소득세 예정신고를 한 데 대하여 2017. 3. 10.경 원고에게 조사대상 세목을 양도소득세, 조사대상 과세기간을 2016. 1. 8., 조사기간을 2017. 3. 22.부터 2017. 4. 10.까지, 조사사유를 '신고 내용에 탈루나 오류의 혐의를 인정할 만한 명백한 자료가 있는 경우에 해당하여 세무조사 실시'라는 내용으로 사전통지를 한 사실, 세무조사 과정에서 이 사건 제1약정의 존재가 드러나는 등 추가 조사가 필요해지자 피고는 조사기간을 2017.

4. The Plaintiff notified the extension of the tax investigation period to the Plaintiff during the extension of the period until August 29, 2008, and the fact that there was a suspicion of transferring the 1/2 equity interest to Kim △△△ and other third parties on August 12, 2008, and that it is necessary to extend the investigation for the taxation of capital gains tax for the year 2008 on the grounds that the exclusion period of imposition was ten years, and that the Defendant issued the instant disposition imposing capital gains tax on the Plaintiff for the entire real estate including the instant equity interest on January 8, 2016, deeming that the transfer of the instant equity interest to Kim △△△△ and four others was conducted on January 8, 2016.

According to the above facts, the defendant seems to have started the investigation of this case through prior notice, considering that only the plaintiff did not report transfer income tax for the remaining portion of the real estate except for the portion of this case among the real estate of this case, and the plaintiff did not report transfer income tax for the portion of this case, and it seems that the transfer income tax for the transfer of the entire real estate of this case was investigated. However, during the investigation process, it seems to have been finally determined that the transfer income tax for the portion of this case was for 2008 year and was finally 2016 years. Thus, the defendant considered the investigation of

It is difficult to view that the transfer income tax was extended to the transfer income tax due to transfer, or the transfer income tax belonging to the plaintiff in 2008 was subject to investigation, and it was expanded to the transfer income tax belonging to the year 2016.

Therefore, the Plaintiff’s assertion on a different premise is rejected.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

1) As seen below, the Defendant imposed capital gains tax of KRW 447,678,360 on the Plaintiff on June 13, 2017. The Defendant appears to have written the Plaintiff’s error.