Whether the transfer of ownership due to compulsory auction is subject to capital gains tax

Even if there is no balance of the successful bid price that will return to the owner of the auction real estate as a result of the court's payment or dividend of the successful bid price, the person to whom the transfer income tax belongs shall be the property owner.

Article 88 (Definition of Transfer) of Income Tax Act

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s disposition of imposition of capital gains tax of KRW 365,821,410 for the Plaintiff on July 1, 2005 shall be revoked.

1. Details of the disposition;

A. On June 28, 1991, the Plaintiff acquired 1,109 square meters in ○○-dong ○○○○○-dong ○○○○○○-dong ○○○○○○-dong (hereinafter “the instant land”) and 1,385 square meters in ○○-dong ○○-dong 1991 (hereinafter “the instant land 2”). On November 12, 1994, the Plaintiff provided each of the instant land to ○○-si ○○-dong ○○○-dong ○○○-dong ○○○-dong ○○○-dong ○○-dong ○○○-dong ○○○○-dong ○○○-dong ○○○-dong ○○ ○○-dong ○○ ○○-dong 1,109 square meters (hereinafter “instant land”). The ownership transfer registration was completed on December 3, 204 with respect to the instant land under the name of ○○ ○○-dong 29.

B. On March 6, 2001, the Plaintiff acquired 2/17 shares of the same ○○○○○○, which was owned by Jin○○○, on the ground of inheritance as of March 6, 2001. At the time, on the said land, the registration of the establishment of a neighboring mortgage with the debtor Jin○○, the mortgagee’s Gangwon-mortgage, and the maximum debt amount of KRW 450 million was completed on December 13, 1997. Thereafter, on the auction of the real estate located in ○○ District Court, ○○○○○○○○ District Court, which was applied by Jin○○○○○○○○○, the third land of this case, and the registration of the transfer of ownership in the name of Ha○○○○ on December 20, 2004, was completed.

C. Accordingly, on July 1, 2005, the Defendant issued the instant disposition imposing and notifying the Plaintiff of KRW 365,821,410 of the transfer income tax reverted to the year 2004 on the ground that the ownership of each of the instant lands was transferred from the Plaintiff to a third party constitutes the transfer of assets subject to capital gains tax.

[Reasons for Recognition] Facts without dispute, Gap1-1, Gap6-1, reduction 6-2, Eul 1-1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

In the above ○○ Real Estate Auction Case, the land Nos. 1 and 2 of this case was awarded to a third party and thereafter the registration of ownership transfer was completed. However, the Plaintiff cannot exercise the right to indemnity against the principal debtor due to bankruptcy of ○○ Stock Company, etc., which is the principal debtor, and the bid price was appropriated for full repayment of the obligation, and thus, the Plaintiff cannot be deemed to have caused capital gains to the Plaintiff. Therefore, the instant disposition is a tax disposition against a person who

B. Relevant statutes

Article 14 of the Framework Act on National Taxes

(1) If the title to the income, profit, property, act or transaction subject to taxation is merely nominal and a person to whom such title belongs exists, the tax-related Acts shall apply to such person to whom such title belongs as a taxpayer.

(2) The provisions concerning the calculation of tax base in tax-related Acts shall apply according to the substance, notwithstanding the name or form of income, profit, property, act or transaction.

○ Transfer of Article 88 of the Income Tax Act

(1) The term "transfer" in Article 4 (1) 3 and this Chapter means that any assets are actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., regardless of any registration or enrollment concerning such assets. In such cases, where a donee takes over any obligation of a donor of an onerous donation (excluding cases falling under the main sentence of Article 47 (3) of the Inheritance Tax and Gift Tax Act), the portion equivalent to the amount of such obligation in the donation amount shall be deemed

C. Determination

Article 88 (1) of the Income Tax Act provides that "the transfer of assets shall not be actually transferred for price due to sale, exchange, investment in kind in a corporation, etc. regardless of the registration or enrollment of assets". Since the successful bidder takes over the ownership of the real estate subject to the transfer income tax under Article 88 (1) of the Income Tax Act because the voluntary auction for the execution of the right to collateral security is realization of the contents of the right to collateral security, the successful bidder is a transfer of assets subject to the transfer income tax under Article 88 (1) of the Income Tax Act, and even if the establishment registration of the collateral which is the basis of the voluntary auction has guaranteed the third party's obligation, the transferor is a person who has pledged his property to secure another's property and the proceeds of the successful auction shall be attributed to the owner of the real estate for the purpose of auction. In addition, the right to indemnity against the principal debtor is appropriated for the repayment of the secured debt on which the principal debtor bears the burden of capital gains tax, and it is merely 2086.7.86.6.

Therefore, the Plaintiff cannot exercise the right to indemnity against the principal obligor, and the bid price cannot be deemed as having been appropriated for the repayment of all obligations, and thus, the Plaintiff’s assertion that the instant disposition was unlawful is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.