(a) Whether compulsory transfer, such as expropriation, is included in “transfer” in unregistered transferred assets under Article 70(7) of the Income Tax Act;

(b) Where assets are excluded from the object of capital gains tax among unregistered transfer assets;

(c) Whether it falls under subparagraph 2 of Article 121-2 of the Enforcement Decree of the Income Tax Act even where it is impossible to register due to restrictions on the acquisition of farmland by non-farmers

D. In a lawsuit seeking revocation of an administrative disposition, the responsibility to assert the specific facts of the illegality

A. The term “transfer” under Article 70(7) of the Income Tax Act, to which the heavy tax rate of 75/100 of the transfer income tax base is applied, is not only a voluntary transfer by the purchaser of the asset, but also a compulsory transfer that is not based on the intent of the purchaser of the asset, such as expropriation under the Land Expropriation Act, etc.

B. The purport that the transfer income tax is levied on the unregistered transferred assets is to prevent and avoid the transfer of assets without registering their acquisition at the time of transfer, thereby evading various taxes, such as transfer income tax and acquisition tax, or preventing the speculative act of real estate in accordance with the transfer of assets without paying the residual transfer margin, etc. Therefore, in the acquisition of the assets at the beginning, it is recognized that there is no objective of speculation such as tax avoidance through the transfer of assets, acquisition of resale gains, etc., and that it is harsh to enforce the transferor on the responsibility of failing to register the acquisition of the assets at the time of transfer to the transferor. In other words, where there is an inevitable circumstance, it is excluded from the transfer of unregistered assets where transfer income tax is excessive corresponding to the cases under the proviso of Article 70(7) of the Income Tax Act and each subparagraph of Article 121-2 of the

C. The proviso of Article 70(7) of the Income Tax Act and subparagraph 2 of Article 121-2 of the Enforcement Decree of the same Act are one of the items excluded from the unregistered transfer assets, and the phrase “property the registration of acquisition of which is impossible at the time of transfer under the provisions of Acts” refers to the case where it is impossible to perform the registration procedure due to the limitation or prohibition of the registration of acquisition, which is generally accepted by law, on the part of the acquisitor of the property, and it does not constitute a case of relative impossibility such as restriction on the acquisition of farmland to non-farmers who are not

D. Unless there are special circumstances in administrative litigation, the pertinent disposition authority should assert and prove the legality of the pertinent administrative disposition, but even if there is no ex officio principle in administrative litigation, so long as the party principle and pleading principle are still based on the basic structure of administrative disposition, it should first claim the specific facts of the illegality except ex officio investigation in order to seek the revocation of the administrative disposition on the ground of the illegality of the administrative disposition.

(a)Article 6-2, Article 70(3)4, Article 70(7) of the Income Tax Act, Article 121-2(d) of the Enforcement Decree of the Income Tax Act, Article 26 of the Administrative Litigation Act / [Liability for Increase]

D. Supreme Court Decision 80Nu510 decided Jun. 23, 1981; 94Nu9047 decided Nov. 25, 1994

Plaintiff 1, et al., Counsel for the plaintiff-appellant

Head of Yongsan Tax Office

Seoul High Court Decision 93Gu26726 delivered on May 25, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal (the grounds of further appeal submitted after the expiry of the period are to the extent of supplement) are examined.

On the first ground for appeal

Article 70 (7) of the Income Tax Act provides that "the transfer of assets to a person who acquires assets on..... without registering the acquisition of such assets" shall be excluded from the application of the provisions on non-taxation, reduction and exemption of capital gains tax (Article 6-2 of the same Act) and Article 70 (3) 4 of the same Act provides that "transfer of assets without registration" shall be subject to heavy taxation rate (Article 70 (3) 4 of the same Act) which means 75/100 of capital gains tax base (Article 6-2 of the same Act). The "transfer" in this context refers not to the transfer of assets by the person who acquires the assets on......, the transfer of assets without registration, but to the compulsory transfer of assets not based on the intention of the person who acquired the assets,

As above, the purport that the transfer income tax is levied on the unregistered transferred assets is to prevent and avoid the transfer of assets without registering their acquisition at the time of transfer, thereby evading various taxes, such as transfer income tax, or pre-sale and purchase without paying the remaining amount, etc. by merely putting the transfer margin. Thus, in the acquisition of the assets at the beginning, it is recognized that there is no purpose of speculation such as tax avoidance through the transfer of assets, or acquisition of resale gains, etc., and that it is harsh to enforce the transferor on the account of the non-registration of the acquisition of the assets at the time of transfer. In other words, in cases where there is an inevitable circumstance, it is excluded from the transfer of unregistered assets subject to transfer income tax, corresponding to the cases under the proviso of Article 70 (7) of the Income Tax Act and each subparagraph of Article 121-2 of the Enforcement Decree of the same Act.

In addition, the proviso of Article 70 (7) of the same Act and subparagraph 2 of Article 121-2 of the Enforcement Decree of the same Act are one of the items excluded from the transfer of unregistered assets, and "the provisions of the Act...., the assets for which the registration of acquisition of the assets at the time of transfer is impossible" refer to the cases where the execution of the registration procedure is impossible because the registration of acquisition is restricted or prohibited under the law with respect to the acquisitor of the assets, and it does not constitute a relative impossibility such as restrictions on the acquisition of farmland to non-farmers who are not residing in the farmland.

However, according to the facts duly established by the court below, the plaintiff was jointly and severally designated as an amusement district under the name of the non-party 1 and the non-party 2, and the land price is expected to be at least three times in a short period, such as a bus terminal, and the seller was responsible for resale, and the purchase price of the non-party 4 land including the land was fully paid, and the registration of ownership transfer was completed with respect to the non-party 1 in the name of the non-party 3 land except the land in this case. However, the provisional registration of the right to claim ownership transfer was completed for the non-party 1 to the non-party 3 land in this case without completing the registration of ownership transfer as farmland in the name of the non-party 1 to whom the non-party 2 had no ownership transfer registration of the land in this case to the non-party 1 to whom the non-party 1 had no ownership transfer registration of the land in this case was entered into the housing site development plan on December 23, 198.

In the same purport, the court below is justified in holding that the land in this case constitutes a unregistered transfer asset under Article 70 (3) 4 of the Income Tax Act, and that the tax disposition in this case made by the defendant against the plaintiff is legitimate on the ground that the plaintiff is the transferor, and the court below's decision is erroneous in the misapprehension of legal principles as to Article 70 (7) of the Income Tax Act, Article 121-2 of the Enforcement Decree of the same Act, and the principle of substantial taxation, it cannot be accepted as it

There is no reason to discuss this issue.

On the second ground for appeal

Unless there are special circumstances in administrative litigation, the relevant disposition agency should prove the legality of the relevant administrative disposition. However, even if there is no ex officio principle in administrative litigation, so long as the party principle and pleading principle are still based on its basic structure, when seeking the revocation of administrative disposition on the ground of the illegality of administrative disposition, the agency should first claim the specific facts of the administrative disposition except ex officio investigation (see Supreme Court Decision 94Nu9047 delivered on Nov. 25, 1994).

However, since the total sum of transfer income tax and defense tax imposed by the Defendant on the transfer of the instant land shares exceeds the transfer value acquired by the Plaintiff due to the transfer of the instant land shares, as long as it is evident in the record that the instant taxation is unlawful under the principle of substantial taxation, even if the Plaintiff did not dispute or claim it in accordance with the purport of the pleading before the pleadings, the Plaintiff cannot be deemed the grounds for appeal on the ground that it cannot be deemed the grounds for appeal, and therefore, the argument on this point is without merit.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-soo (Presiding Justice)