Seoul Administrative Court 2017Guhap6032 (2017.03)

The early appellate court 2015, 5723, 5728, 4654, 5727, 5725, 5745, 5729, 5759, 5760, 5758 (03.11), 2014,032 (205.08) of the early appellate court

propriety of the disposition imposing taxes by deeming the appraised value of the right shares in the land as the transfer value

Where reconstruction is attempted under the Urban Redevelopment Act, but it is difficult to proceed, it is sold to a trust company by land owner, and the price is made by the trust company to obtain new buildings constructed as the owner, it shall be deemed as the time of transfer by considering the time of acquisition of new buildings as the remaining liquidation date.

Article 96 of the Income Tax Act: The time of transfer or acquisition under Article 98 of the Income Tax Act;

2017Nu37194 Revocation of Disposition of Imposing capital gains tax

○○ Kim and 10 others

○ Head of Tax Office and two others

Seoul Administrative Court Decision 2016Guhap6032 decided February 3, 2017

June 16, 2017

August 18, 2017

1. All appeals filed by the plaintiffs are dismissed.

2. The costs of appeal are assessed against the Plaintiffs.

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 208,431,50 on May 7, 2015 against Plaintiff KimA, KRW 46,095,920 on June 12, 2015, KRW 23,547,590 on May 4, 2015, KRW 30,820,410 on May 4, 2015, and KRW 30,609, KRW 930 on May 12, 2015, and KRW 88,60, KRW 930, KRW 13,180, KRW 107, KRW 107, KRW 107, KRW 410 on May 12, 2015, the imposition of capital gains tax of KRW 153,57, KRW 201, KRW 57, KRW 106, KRW 57,2015 on May 7, 2017,2015.

1. Quotation of the reasons for the judgment of the first instance;

The reason for this decision is as follows: 10th to 17th 9th 10th 10th 17th 11th 11th 12th 12th 12th 12th 12th 13th 12th 12th 2th 2th 2th 2th 2th 2th 2th 2th 2th 2th 2th 200. Therefore, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

② The trust registration of the instant land shares was completed in the future of the MFM trust, which is the trustee under the instant contract concluded between the Plaintiffs and the MFM, and its ownership is entirely transferred to the MFM. However, this is only for the purpose of using the trustee’s ability to manage and dispose of the instant land in order to stably implement the new construction project. As such, the instant trust agreement is cancelled, the trust registration is cancelled, the ownership transfer registration is completed, and the trust property is transferred to the beneficiary in the existing state. As such, if the contract is planned to terminate from the beginning, and is terminated, the trust property is returned to the beneficiary, the trustee, and the MFM is not subject to the ownership of the actual profits, etc. from the instant land shares. It cannot be deemed that the Plaintiffs acquired the trust registration after completing the registration of the instant land shares in accordance with the instant contract, and thus, it cannot be deemed that it constitutes a trust agreement with compensation for transfer."

2. The further determination of this Court

A. The plaintiffs' assertion

The plaintiffs asserted to the purport that the land owners, including the plaintiffs, set the right to a site of the instant aggregate building on their co-ownership rights, and that part of the land owners' aggregate buildings and the remaining aggregate buildings of general buyers were constructed, and therefore, the right corresponding to the right to a site where the land owners constructed the aggregate building has not been transferred under the Income Tax Act, and thus, it cannot be subject to capital gains tax.

B. Determination

In full view of the above facts and the above quoted evidence, the plaintiffs concluded the contract of this case with the mother NN with the purport that the plaintiffs would provide the land shares of this case and settle the difference between the appraised value of the land shares of this case which the mother NN newly built on the ground of this case and the purchase price of the apartment of this case, and the mother NN and MMM trust will proceed with the business of this case by obtaining a building permit under the Building Act with their joint owners. Since MMM which became the sole owner after obtaining approval for use of the apartment of this case, it completed the registration of ownership transfer in the future of the buyer of the apartment of this case after completing the registration of ownership transfer, and the plaintiffs settled the sale price of the land shares of this case as stipulated in the contract of this case, etc. as well as the purchase price of the several apartment of this case and completed the registration of ownership transfer with respect to the several apartment of this case.

According to the above facts, the share of the land in this case owned by the plaintiffs is the ownership of the share of the land in this case. On the other hand, the ownership of the ownership of the land in this case purchased by the plaintiffs is the constituent element of the newly constructed apartment of this case, which is an aggregate building, and is completely different from the ownership of the land in this case. Moreover, the plaintiffs are entitled to purchase the unit apartment of this case in return for the transfer of the share of the land in this case they own according to the contract in this case and cannot be deemed to maintain the identity between the share of the land in this case and the unit apartment of this case. Furthermore, the plaintiffs who are the owners of the share of the land in this case concluded the contract in this case and concluded the sales contract for the newly constructed apartment of this case, and calculated the appraised value of the share of the land in this case, which is the whole land owned by the plaintiffs, not the area corresponding to the share of the land in this case, and settled the difference between the purchase price and the unit apartment of this case. Therefore, it cannot be viewed that only the part corresponding to the

Therefore, this part of the plaintiffs' assertion is without merit.

3. Conclusion

Therefore, all of the plaintiffs' claims shall be dismissed due to the lack of reasonable grounds. Since the judgment of the first instance is just in conclusion, the plaintiffs' appeal is dismissed as it is without merit.