National Tax Service Review and Transfer 2011-020 ( December 30, 2011)

Since the transfer registration was made before the date of settlement of price, the time of transfer is the date of receipt of the registration.

After receiving the initial compensation, the date of the final receipt of the increased compensation through the ruling and administrative litigation falls under the date of settlement of the price, but since the transfer registration of ownership was previously made, the time of the transfer of real estate shall be deemed the date of receipt of the registration.

Article 98 of the Income Tax Act

2012Gudan2170 Revocation of Disposition of Imposing capital gains tax

The AA

Head of Yeongdeungpo Tax Office

July 11, 2012

August 22, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of capital gains tax of KRW 000 for the year 2010 against the Plaintiff on July 7, 2011 shall be revoked.

1. Details of disposition;

A. The Plaintiff was the owner of the land and building on the OOdong 00 and five parcels of land in Guro-gu Seoul Metropolitan Government (hereinafter referred to as the “OOdong san”), and as the real estate was expropriated in the O2 national rental housing complex district on December 18, 2009, the Plaintiff received 000 won of the compensation for the expropriation adjudication (hereinafter referred to as “the first compensation”) from E.S. Corporation (hereinafter referred to as “O.S.”) who is the project implementer without reservation on December 18, 2009. Upon filing the preliminary return of the capital gains tax on December 19, 2009, the Plaintiff received the first compensation on December 18, 2009 as the time of transfer of the real estate in this case, and then deducted 10% of the income tax amount to the Defendant under Article 108(1) (hereinafter referred to as the “tax credit provision”).

B. On July 26, 2010, the Plaintiff filed a revised return on August 23, 2010 with respect to KRW 000,000, and paid additional capital gains tax of KRW 000,000, and received 000,000,000,000,000,000,000,000,000,000,000,000,000 won, as capital gains tax through administrative litigation (

C. The registration of ownership transfer was completed on January 25, 2010 on the instant real estate due to the expropriation on January 12, 2010.

D. On January 25, 2010 on the premise that the time of transfer of the instant real estate was the date of settling the remainder or the date of transfer registration of ownership, the Defendant determined that the amount equivalent to 5/100 of the tax amount to be paid from the calculated tax amount under Article 16 (2) of the Addenda of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009) (hereinafter referred to as the “the supplementary provisions of this case”) was the deduction amount of the income tax for lawful preliminary return payment, and that the Plaintiff deducted the amount exceeding 5/100 of the capital gains tax from October 1, 201 to the date of notification, and applied the additional tax for additional payment for arrears from February 22, 2011 to the Plaintiff by applying the disposition for additional tax for additional payment for arrears from 40,516, and 16% to 10/101 to 201.

E. The Plaintiff completed the pre-trial procedure (request for review).

[Ground of Recognition] The non-contentious facts, Gap evidence Nos. 1 through 3, Eul evidence No. 1, and the whole purport of the pleading

2. Whether the disposition is lawful;

A. The key issue of the instant case is whether the transfer time of the instant real estate is deemed to be December 18, 2009, which is the date of the initial payment of compensation, as alleged by the Plaintiff, and whether the tax credit provision is applied, or whether the ownership transfer registration date, which is earlier than February 22, 2011, is applied as of January 25, 201, which is the date of the remainder settlement. Accordingly, it is also determined whether the amount of tax credit for capital gains tax is changed and the penalty tax is imposed.

B. Relevant statutes: as shown in the separate sheet. C. Determination on the timing of transfer

(1) Article 98 of the former Enforcement Decree of the Income Tax Act (amended by Act No. 9897, Dec. 31, 2009) provides that the time of acquisition and transfer of the real estate shall be determined by Presidential Decree, and Article 162 (1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 2200, Jan. 27, 2010) provides that "the time of acquisition and transfer of the real estate shall be determined by Presidential Decree No. 20, 100, 200, 200, 100, 200, 200, 200,000, 200,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,00,000.

(2) On December 11, 2009, the Plaintiff, at the request of Nonparty 2, submitted all documents necessary for the registration of ownership transfer between the Plaintiff and the applicant for payment of compensation between the Plaintiff and Nonparty 1. On December 18, 2009, Nonparty 2 received compensation for expropriation ruling on December 18, 2009, and Nonparty 2 was in fact able to register ownership transfer due to expropriation ruling on December 18, 2009, and it should be strictly interpreted only when the payment of the price is made in full, but it is unreasonable that the Plaintiff’s right to trial for increasing the amount of compensation guaranteed by the landowner under the conditions as prescribed by the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects would be seriously damaged. However, the Plaintiff’s provision on the acquisition time and transfer time of assets should be understood as 0 years before the date of acquisition and transfer, and the provision on the acquisition time and transfer of assets under Article 98 of the former Income Tax Act and Article 162 of the former Enforcement Decree of the Income Tax Act should be understood within 20 years of taxation.

(3) In addition, as long as the preliminary return of capital gains tax was made in 2009, the Plaintiff asserts that at least 10% of the initial compensation should be subject to the tax credit provision. However, as seen earlier, it is different whether the tax credit provision or the supplementary provision of this case should be applied according to the transfer time of the real estate, not the preliminary return date of capital gains tax, and therefore, the Plaintiff’s assertion on this part is without merit.

D. Whether the imposition of additional tax is illegal (1) Summary of Plaintiff’s assertion

“Although the supplementary provisions of this case apply to the transfer of the real estate of this case, the Plaintiff had a reasonable expectation that the Plaintiff would be able to benefit from the tax credit for preliminary return under the tax credit provisions applied in 2009 (e.g., the issuance of documents necessary for the registration of ownership transfer, the receipt of compensation following the decision of expropriation, and the preliminary return and payment). Therefore, the Plaintiff thought that the Plaintiff would benefit from 10/100 of the tax amount after the tax credit rules were applied. Therefore, it is unreasonable to believe that the Plaintiff did not know of the obligation to pay capital gains tax for the portion exceeding 5/10, because it is unreasonable that the Plaintiff did not know of the obligation to pay capital gains tax for the portion exceeding 5/10, and therefore there

(2) Determination

Under the tax law, in order to facilitate the exercise of the right to impose taxes and the realization of tax claims, if a taxpayer violates a tax return and tax liability as prescribed by the Act without any justifiable reason, and if it is unreasonable for the taxpayer to be unaware of his duty as prescribed by the Act, it may not be imposed if there is any justifiable reason that it is unreasonable for the taxpayer to be able to present it properly or to expect the party to fulfill his duty. However, the circumstances revealed in the facts acknowledged earlier, i.e.,, the delivery guidance for the payment of compensation for expropriation of the real estate mentioned as of January 12, 2010 (Evidence No. 5), and the subsequent disposal of the real estate by the Plaintiff cannot be seen as being 10% transfer registration and the first sale registration of ownership of the real estate after the date of expropriation of the real estate in this case, to the extent that the Plaintiff would have received compensation for the first 20% transfer registration and the first sale registration of ownership of the real estate in this case after the date of expropriation of the real estate in this case.

3. Conclusion

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