Whether it is possible to recognize expenses for securing the ownership of transferred real estate

The key issue of the sale price paid to a third party who is not a party to the sale of real estate cannot be deemed to constitute litigation costs and reconciliation costs incurred directly in order to secure ownership, etc. of the transferred real estate, and thus a disposition

Article 94 (Scope of Transfer Income Tax)

Article 96 (Transfer Price)

1. All of the plaintiffs' claims are dismissed.

2. The costs of lawsuit are assessed against the plaintiffs.

Each disposition of imposition of capital gains tax of 10,647,140 won against each of the plaintiffs against the defendant on February 8, 2007 shall be revoked.

1. Details of the disposition;

A. On April 15, 200, the Plaintiffs respectively acquired from the Republic of Korea 4,684,800 square meters for 1,066 square meters for ○○○○-13 forest land and 500 square meters for ○○○○○-14 forest land and 566 square meters for ○○○-15 forest land and 566 square meters for ○○○○-16 forest and 900 square meters for ○○○-17 forest and 1,03 square meters for ○○○-17 forest and 1,03 square meters for ○○○-17 forest and 733 square meters for ○○○○-18 forest and fields (hereinafter “each forest of this case”).

B. Thereafter, on October 9, 2006, the Plaintiffs transferred the remaining forest land (hereinafter “transferable real estate of this case”) excluding ○○○○○-14 forest land in Mapo-dong, Sinpo-dong, Sinpo-si, ○○○-14 forest land (hereinafter “instant transfer real estate”) to Nonparty 1 and 3 other than Nonparty 195,00,000 won.

C. On December 28, 2006, the Plaintiffs reported and paid KRW 195,00,000, which is the actual transaction price, and KRW 4,084,800,000, excluding KRW 600,000,00 of the purchase price of this case 4,684,80,000, excluding KRW 600,000,000,000, and KRW 78,139,200, 200, which claimed that the transfer price of the instant transferred real estate was paid to Nonparty 1 for the acquisition of the instant transferred real estate due to the illegal sale of State-owned land, respectively, and KRW 5,386,815,00,00 for each taxable year in 206.

D. Accordingly, the Defendant, on February 8, 2007, imposed capital gains tax of KRW 10,647,140 on the Plaintiffs on the following grounds: (a) since the sales contract of each forest of this case, which was acquired from Park ○○, was the case of illegal sale of state-owned land, and the judgment was finalized by the Supreme Court on the invalidation of the cause; (b) the acquisition price of the transferred real estate of this case is KRW 4,684,80, which is the purchase price of this case; and (c) deducted necessary expenses such as acquisition tax and registration

E. On June 8, 2007, the Plaintiff appealed and filed a request for review with the National Tax Tribunal on March 5, 2007, but was dismissed on or around September 20, 2007.

[Reasons for Recognition] Facts without dispute, Gap evidence 1 to 3, 2-1 to 3, 5-1 to 6-5, the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. The plaintiffs' assertion

According to Articles 96(1) and 97(1)1(a) of the Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006), and Article 163(1) of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890 of Feb. 28, 2007), the actual transaction price required for asset acquisition is the necessary expenses to be deducted from the transfer price in calculating gains, and the actual transaction price required for acquisition is the sum of the amount of litigation costs, reconciliation costs, etc. directly required to secure ownership in the assets for which the value equivalent to the cost for acquisition and the dispute on acquisition are raised.

On May 29, 1992, the Plaintiffs purchased each forest of this case from Park ○○ in KRW 82,650,00,000, and subsequently purchased 4,684,800 from the Republic of Korea, and completed the registration of ownership transfer by paying 82,650,000 won for the special sale to the Republic of Korea, and further purchased 82,650,000 won and completed the registration of ownership transfer.

Therefore, since the part of the above purchase price of KRW 82,650,000 which constitutes the transferred real estate of this case constitutes the litigation costs and reconciliation costs incurred directly to secure ownership, etc. of each forest of this case, each disposition of this case excluding the above amount from the acquisition price is unlawful.

(b) Related statutes;

Article 94 (Scope of Transfer Income Tax)

Article 96 (Transfer Price)

Article 97 (Calculation of Necessary Expenses for Transfer Income Tax)

Article 163 (Necessary Expenses for Transferred Assets)

(c) Fact of recognition;

(1) Each forest of this case was owned by the State (National Forest Service) from January 21, 1969. On June 28, 1991, the transfer registration for ownership was completed due to the purchase and sale as of September 30, 1974 under the name of Park ○ on June 28, 199, and thereafter on May 29, 192 under the Plaintiffs’ name on January 15, 198.

(2) However, when the transfer registration of ownership completed under the name of Park ○ and the plaintiffs with respect to each forest of this case becomes null and void as a matter of course (see Supreme Court Decision 94Do2048, Oct. 21, 1994); on May 31, 1999, the Director of Seogsan Regional Forest Administration Management Office sent a peremptory notice and a voluntary statement to the plaintiffs that "if a person who is objectively a third party in good faith voluntarily returns the above state-owned land to the State or respond to reconciliation prior to filing a lawsuit, the registration of transfer of ownership in the names of the plaintiffs, which had been completed with respect to each forest of this case, is null and void as a ground for the registration of transfer of ownership in the Republic of Korea."

(3) On February 7, 2000, the Plaintiffs transferred the registration of transfer of ownership under the name of the Republic of Korea on the grounds of donation from February 1, 2000 with respect to each forest of this case.

(4) Meanwhile, the Plaintiffs concluded a special contract for the sale of concealed property with the head of Youngam State Forest Administration and the head of Youngam State Forest Administration, the disposition agency of the Republic of Korea on the same day, for the sale price of KRW 4,684,800, which is 20% of the appraised value of each of the forest of this case, and completed the registration of ownership transfer in the names of the Plaintiffs on April 2 of the same year.

[Ground of recognition] Facts without dispute, Gap evidence 6-1 to 6, Eul evidence 8-1 to 4, the purport of the whole pleadings

D. Determination

살피건대, 앞서 본 바와 같이 이 사건 각 임야에 대하여 마쳐진 1991. 6. 28.자 박○자 명의의 소유권이전등기 및 1992. 5. 29.자 원고들 명의의 소유권이전등기가 원인무효로 확정됨으로써 1969. 1. 21. 이후 계속하여 이 사건 각 임야는 대한민국의 소유였다고 할 것인 점, 원고들은 2000. 2. 1. 이 사건 각 임야에 대하여 매매대금 4,684,800원에 은닉재산특례매매계약을 체결하고서, 같은 해 4. 2.경 위 매매대금을 모두 납부한 다음, 같은 해 4. 15. 원고들 명의로 소유권이전등기를 마침으로써 비로소 소유권을 취득한 점, 원고들 주장과 같이 이 사건 각 임야를 취득하기 위하여 박○자에게 82,650,000원을 지급하였다고 하더라도 위 돈은 원고들이 박○자에게 지급한 것이지 대한민국에 지급한 것이 아닌 점, 이 사건 각 임야에 대한 원고들 명의의 소유권이전등기가 원인무효로 됨으로써 원고들이 박○자에 대하여 위와 같이 박○자에게 지급한 위 돈 상당의 손해배상 내지 부당이득 채권을 가지게 된 점 등을 고려해 보면, 원고들이 대한민국으로부터 취득한 이 사건 양도부동산을 양도함으로써 부과되는 이 사건 양도소득세를 산정함에 있어 원고들이 제3자인 박○자에게 지급한 매매대금은 이 사건 양도부동산의 소유권 등을 확보하기 위하여 직접 소요된 소송비용ㆍ화해비용 등에 해당하낟고 볼 수 없다 할 것이다.

Therefore, the plaintiffs' assertion that the above purchase price paid to Park ○ constitutes necessary expenses for securing ownership, etc. of the transferred real estate of this case and should be included in the acquisition price is without merit.

3. Conclusion

Therefore, the plaintiffs' assertion is dismissed as it is without merit. It is so decided as per Disposition.