Whether the disposition imposed is legitimate by deeming the date of receipt of the compensation for expropriation as the time of transfer, which is not the time of deposit

In accordance with the income tax law, the acquisition time and transfer time of assets which are various criteria are uniformly grasped and interpreted without contradictions the related regulations.In order to apply the tax calculation, the tax disposition is a restriction provision on the acquisition time and transfer time of assets for tax calculation, which is legitimate.

The contents of the decision shall be the same as attached.

Seoul Administrative Court Decision 99Gu22560 delivered on November 19, 1999

1. Revocation of the judgment of the first instance court.2. The plaintiff's claim is dismissed.3. All costs of the lawsuit are assessed against the plaintiff.

1. Details of the disposition;

(a) Facts of recognition;

The following facts are not disputed between the parties, or may be acknowledged by the statements in Gap evidence 1, Gap evidence 2-1, 2-1, 3-2, Gap evidence 4-1 through 3, Gap evidence 5 through 9, Eul evidence 1 and 2:

"(1) 원고는 1976.12.31. 이전부터 별지 목록 기재 각 부동산(이하이 사건 부동산'이라고만 한다)을 취득하여 소유하여 왔는데, ㅇㅇ위원회는 1996. 10. 21. 기업자인 ㅇㅇ공사(이하공사'라고만 한다)의 신청에 의하여 ㅇㅇ2 ㅇㅇ사업지구에 편입된 이 사건 부동산에 관하여 수용재결일을 1996.11.30.로 하여 수용재결을 하였고, 공사는 1996. 11. 29. 이 사건 부동산의 수용보상금 3,380,147,550원(현금 1,656,000,000원, 유가증권 금1,724,147,550원)을 공탁하였으며, 이 사건 부동산에 관하여 1997. 1. 7. 공사 명의로 소유권이전등기가 경료되었다.",(2) 한편, 원고가 위 수용재결에 불복하여 이의신청을 한 결과 ㅇㅇ위원회는 1997. 4. 18. 이 사건 부동산에 관한 수용보상금 48,847,400원을 증액하는 결정을 하였고, 공사는 같은 해 6. 2. 이를 공탁하였으며, 원고는 같은 해 7. 1. 이를 수령하였다.

(3) On January 20, 1997, the Plaintiff considered the transfer date of the instant real estate as the date of expropriation on November 30, 1996, and calculated the transfer income tax as 1,652,058,603 won, and calculated the transfer income tax as 817,029,300 won based thereon, and thereafter, calculated the transfer income tax as 817,029,300 won under Articles 57(1) and 88-2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of Dec. 31, 1993), Article 16(8) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of Dec. 1, 1993) and Article 16(8) of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5038 of Dec. 29, 195; 360,196).

(4) 그런데 피고는, 이 사건 부동산의 양도시기를 이 사건 부동산에 대한 소유권이전등기가 경료된 1997. 1. 7.로 보고 부과처분을 하였다. 즉, 이 사건 부동산과 원고가 1997. 1. 23. 양도한 ㅇㅇ시 ㅇㅇ동 356 임야 137㎡의 양도로 인한 양도차손 금 127,410원을 이 사건 부동산의 양도차익과 통산하되, 이 사건 부동산의 취득가액은 의제취득일인 1985. 1. 1. 당시의 기준시가로 하여 양도소득금액을 금1,444,809,937원으로 산출하고 이를 기초로 양도소득세액을 산출한 뒤, 구 조세감면규제법(1995. 12. 29. 법률 제5038호로 개정되어 1996. 1. 1.부터 시행된 것) 제63조 제1항 제1호, 제119조 제1항의 각 규정에 의한 양도소득세감면의 종합한도액 금 1억 원 등을 공제하여 총결정세액을 금569,964,600원으로 결정하고, 여기서 원고가 자진 납부한 세액을 공제한 다음, 1998. 12. 3. 원고에 대하여 양도소득세 금 104,638,230원을 추가로 부과・고지하는 이 사건 처분을 하였다.

B. Specific details of the disposition and scope of revocation request

According to the above facts, the instant disposition was imposed on December 3, 1998 at KRW 569,964,60 (the paid tax amount of KRW 465,326,370 + the additionally notified tax amount of KRW 104,638,230, and the special rural development tax amount of KRW 60,000), and the Plaintiff sought revocation of the additional notified tax amount of KRW 104,638,230,000.

2. Whether the disposition is lawful;

A. Relevant statutes and the issues of the instant case

(1) According to Article 57(1)1 and Article 88-2 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of Dec. 31, 1993), Article 16(8) of the Addenda of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 4666 of Dec. 31, 1993) and Article 16(9) of the Addenda of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5038 of Dec. 1, 1995 and enforced January 1, 1996), Article 9 of the former Regulation of Tax Reduction and Exemption Act (amended by Act No. 5039 of Jan. 1, 1994) provides that a national acquired before December 1, 1994 by transfer to an implementer of a public project subject to reduction and exemption of capital gains tax within the scope of KRW 300,000,00 for each taxable year, 196 of the former Regulation of Tax Reduction and Exemption Act.

(2) Therefore, if the time of the transfer of the instant real estate is November 30, 1996, which was the time of expropriation as determined by the original expropriation ruling, the amount of KRW 300 million should be deducted from the said transfer income tax. If the said time of transfer is January 7, 1997, the date of receipt of the registration, the amount of KRW 100 million should be deducted. Thus, the issue of the instant case is when the time of the transfer of the instant real estate.

B. Determination

Article 88(1) of the former Income Tax Act (amended by Act No. 5424, Dec. 13, 1997; hereinafter the same) provides that "transfer" means that an asset is actually transferred for price due to a sale, exchange, corporation's investment in kind, etc. regardless of the registration or enrollment of the asset. In calculating gains from the transfer of the asset, Article 98 of the Act provides that the time of acquisition and time of transfer shall be determined by Presidential Decree. Article 162(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 15500, Oct. 25, 1997; hereinafter referred to as the "Enforcement Decree") provides that "the time of acquisition and time of transfer pursuant to Article 98 of the Act shall be the date of liquidation of the price of the asset except in the following cases. Article 88(1)2 provides that "The date of acquisition or transfer of the ownership (including a registration or a statement of title) recorded in the register or register, or a list of real property (see Article 97).

Meanwhile, Article 98 of the Act comprehensively delegates the time of acquisition and transfer of assets to the Presidential Decree in calculating gains from the transfer of assets as seen above, and Article 162 of the Enforcement Decree of the Act regulates the time of acquisition and transfer of assets through delegation. As such, the Act and the Enforcement Decree of the Act uniformly provides for the time of acquisition and transfer of assets shall be the standard time to determine whether the time of acquisition and transfer meet the requirements for taxation or tax exemption, as well as the time of acquisition and transfer of assets in calculating gains from the transfer of assets. Furthermore, in order to uniformly determine the time of income attribution, separate from the time of determining the time of income attribution under the Civil Act and other Acts and subordinate statutes, separate from the time of acquisition and transfer of assets. Accordingly, the time of acquisition or transfer for calculating gains from the transfer of assets under the above provisions should be determined (see Supreme Court Decision 9Nu164, Oct. 25, 1994; 9Nu1614, Dec. 196, 196).

In this case, the acquisition date of the real estate in this case was November 30, 1996, and the receipt date of the ownership transfer registration of this case was January 7, 1997. In this case, the deposit date of compensation determined to increase the real estate in this case was June 2, 1997, the transfer date under the provisions of the Act on the Real Estate in Articles 61(1) and (2), 67(1), and 76 of the Land Expropriation Act was the time of expropriation at the time of the decision to expropriate the real estate in this case, but the transfer date of the real estate in this case for calculating transfer income tax was the time of November 30, 1996 when the expropriation was made under the provisions in Articles 98 of the Act and Article 162(1)2 of the Enforcement Decree of the Land Expropriation Act, but the acquisition date of the real estate in this case was the date of receipt of registration stated in the register of the real estate in this case.

Therefore, since the time of transfer of the real estate of this case was November 30, 1996, the plaintiff's claim of this case under the premise that the tax amount of KRW 300 million should be deducted for the transfer income is groundless.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed without merit, and the judgment of the court of first instance shall be revoked and it shall be dismissed and it shall be so decided as per Disposition.