The fact that the seller appropriated the loan of the object of sale as collateral for the balance of the purchase and sale shall not be deemed as the date of liquidation.

Since the seller's act of paying the balance of the loan by providing his/her own property as collateral is considerably exceptional, it cannot be deemed as the date of settling the balance even if the buyer bears the interest on the loan.

Article 88 (Definition of Transfer)

Enforcement Decree of the Income Tax Act Article 162 (Time of Transfer or Acquisition)

2014Gudan59286 Revocation of Disposition of Imposing capital gains tax

○ ○

○ Head of tax office

April 18, 2016

May 9, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposing capital gains tax of KRW 220,00,000 for the Plaintiff on April 2014, 200, additional tax on negligent tax returns of KRW 20,000,00 for additional tax, and KRW 200,000 for additional tax on additional tax shall be revoked.

1. Details of the disposition;

A. The registration of ownership transfer was made on October 1, 2002 in the name of the goldA on May 1, 2002 with respect to 1/2 shares in the instant real estate under the name of ParkBB and ParkCC (hereinafter “LB, etc.”) on May 1, 2003, with respect to 258 square meters in ○○○-dong, Seoul, 000, 129 square meters in 129 square meters in 1/2, and 3 buildings on the said land (hereinafter “the instant real estate, including the said land and buildings”).

B. On July 1, 2003, the goldA scheduled the transfer value of the instant real estate as KRW 80 million, and the acquisition value as KRW 820 million to the Defendant, and paid KRW 300,000,000 for the transfer income tax for the year 2003. The Defendant reported the acquisition value of KRW 1/2 of the instant real estate among the assignees of the instant real estate at KRW 700,000,000 on the ground that the actual transfer value of the instant real estate was not KRW 80,000,000,000 (=700,0000 x 2) and the actual transfer value of the instant real estate was increased by KRW 400,000 for the year 203,000,000,000 (hereinafter referred to as the “former correction and disposition”).

C. The Geumwon District Court (Seoul High Court 2012Nu0000) filed a revocation of the disposition of imposition of capital gains tax on the grounds of objection to the previous disposition of this case, and on April 4, 2013, from the appellate court (Seoul High Court 2012Nu0000) of the said lawsuit, the taxpayer of capital gains tax on the transfer of the real property of this case was not the trustee, but the truster of the title (the plaintiff in this case). Thus, the judgment of winning the judgment of winning the previous disposition of this case against the Geumwon was rendered on the grounds that the previous disposition of this case was unlawful, and thereafter the defendant revoked the previous disposition of this case ex officio on July 1, 2013, and filed a final appeal by the defendant on September 12, 2013 (Supreme Court 2013Du0000) with the final appeal of this case (hereinafter referred to as the "previous administrative litigation of this case").

D. The Defendant determined that the taxpayer of the instant real estate was the Plaintiff through the previous lawsuit, and imposed KRW 20 million on the Plaintiff on April 1, 2014, by applying the ten-year exclusion period of imposition as stipulated in Article 26-2(1)1 of the Framework Act on National Taxes (amended by Act No. 7329, Jan. 5, 2005; hereinafter the same) on the ground that the Plaintiff’s act of transferring the instant real estate constitutes fraud or other unlawful acts (hereinafter “disposition”).

E. The Plaintiff appealed and filed an appeal with the Tax Tribunal on July 1, 2014, but was dismissed on September 20, 2014.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, 2, 4 (including each number), Eul evidence 1 and 2

Statement, the purport of the whole pleading

2. Whether the instant disposition is lawful

A. The parties' assertion

1) The plaintiff's assertion

A) First of all, the fact that the transfer price under the sales contract between the Plaintiff and ParkB, etc. for the instant real estate (hereinafter “the instant real estate sales contract”) reaches KRW 1.50 billion shall be proved by the Defendant, but the Defendant failed to prove it.

B) Even if the above transfer price for domestic affairs falls under KRW 1.50 million, the Plaintiff received all the transfer price for the instant real estate from ParkB, etc. on October 2002. Thus, the transfer period of the said real estate on October 31, 2002 expires on October 31, 2013, and thus, the exclusion period for imposition of capital gains tax expires on May 31, 2013. Thus, the instant disposition is unlawful that the exclusion period for imposition was imposed on the disposition of this case.

2) The defendant's assertion

A) The fact that the transfer price of the instant sales contract reaches KRW 1.50 billion is recognized in the previous litigation, etc. of the instant case.

B) Since the date of liquidation of the transfer price of the instant sales contract is not clear, the time of the Plaintiff’s transfer of the said real estate shall be deemed to be 0 May 3, 2003, when the transfer registration of ownership was completed to ParkB, etc. In such a case, the exclusion period for imposition of capital gains tax on the said transfer was up to May 31, 2014, and thus, the instant disposition made within that period is lawful.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination on the transfer price of the instant sales contract

The following circumstances, which are acknowledged by comprehensively taking into account the aforementioned facts, Eul evidence Nos. 3 and 4 (including each number), and the purport of the entire arguments, are as follows: (i) one of the buyers of the instant sales contract, LBB, and LA, which relayed the instant sales contract, testified to be a witness in the previous lawsuit, and the actual purchase price of the instant sales contract was KRW 1.50 million; (ii) the Plaintiff, as the former wife of the instant lawsuit, did not dispute the second instance of the previous lawsuit, about the cause of the said purchase price was KRW 1.50 million; (iii) even the Plaintiff, who was present as a witness in the previous lawsuit of this case, testified that the actual purchase price of the instant sales contract was KRW 1.50 million at the time of the Plaintiff’s attendance at the previous lawsuit of this case was KRW 1.5 billion; and (iv) the Plaintiff’s assertion that the sale price was KRW 1.5 million is proved by the Plaintiff’s assertion that the sale price was KRW 1.5 million.

D. Determination as to the time of transfer of the instant real estate

1) Relevant legal principles

Article 98 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the same) and Article 162 (1) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005; hereinafter the same) provide that the time of acquisition and transfer of assets shall be the date of liquidation of the price of assets, but if the date of liquidation is unclear, it shall be the date of receipt of registration recorded on the registry, etc. In general, since the burden of proof of the facts of taxation in a disposition imposing tax is the person having the above legal authority, the time of acquisition and transfer shall be, in principle, proved by the person having the tax authority. However, the above time of acquisition and transfer shall be the base date for calculating the gains from transfer of assets and the time of application thereof shall be 00 times of liquidation, furthermore, if the person having the tax authority can easily prove that the date of liquidation or sale contract is 20 days of liquidation.

In full view of the above facts, Gap's evidence Nos. 3, 5, 6, 7, 10, Eul evidence Nos. 2, 3, and 4 (including various numbers), and the whole purport of the pleadings, the following circumstances can be seen as being revealed by the evidence submitted by the plaintiff that the liquidation date of the purchase price based on the sales contract of this case is around October 2002, as alleged by the plaintiff. Thus, it cannot be deemed as being clear that the liquidation date based on the sales contract of this case is around October 2002, as alleged by the plaintiff. Accordingly, pursuant to Article 98 of the former Income Tax Act and Article 162 (1) 1 of the former Enforcement Decree of the Income Tax Act, the disposition of this case, which became final and conclusive on May 1, 2003, where the ownership transfer registration of the real estate of this case was completed by ParkB, etc.

The money actually paid by ParkB, etc., the buyer of the instant sales contract, which appears to have been concluded around March 2002, to the Plaintiff, the seller, is merely KRW 100 million.

The Plaintiff asserted that he received KRW 400 million from ParkB, etc. on April 1, 2002 as an intermediate payment of the instant sales contract. The Plaintiff testified that he borrowed KRW 400 million from ParkB as a witness in the instant previous lawsuit (the Plaintiff) to five copies per month, and that he paid the said KRW 400 million as a down payment and an intermediate payment to KimD (the bid price for the instant real estate). Therefore, it is difficult to conclude that the said KRW 400 million as an intermediate payment is an intermediate payment.

The plaintiff asserts that the sum of KRW 670 million (hereinafter "the first loan") and KRW 230 million (hereinafter "the second loan") on October 1, 2002, 200 and KRW 900 million (hereinafter "the second loan") that were loaned by the ○○ Saemaul Bank in the name of goldA was paid for the remainder of the loans. In light of the general sales contract's payment method, the seller's appropriation of the loan received as security to the balance of the loan, and it appears that the above two loans were not directly involved in ParkB, etc. at the time of the above two loans, and even if ParkB, etc. paid interest on each of the above loans to the ○ Saemaul Bank, it is difficult to view that each of the above loans was paid to the above ○○ Saemaul Bank on the basis of the changed loan agreement, and it is difficult to view that each of the above loans was paid to the above 200 million owners of the real estate as security, and that each of the above loans was paid to the above 200 million owners of the real estate.

In addition, even if the Plaintiff’s transfer of KRW 100 million to ParkB on October 1, 2002, prior to the receipt of the second loan after the Plaintiff’s receipt of the second loan, it appears that the Plaintiff and ParkB had a relationship of claims and obligations arising from a separate legal act other than the instant sales contract, and solely on the fact that the Plaintiff’s receipt of each of the above loans, it is difficult to view that the Plaintiff received the balance from ParkBB, etc. under the instant sales contract.

In addition, the sales contract of this case written on March 1, 2002 stated the remaining performance time as "O.O. on May 2002" while the plaintiff appears to have been prepared on July 2002 as "O.O. on August 2002". On the other hand, the plaintiff himself claims that "O.O.O. on October 2002" was settled in the lawsuit of this case, and that the transfer date of ownership of the real estate of this case is "O.O.O. on May 2003", it is difficult for the defendant, who is subject to the transfer income tax under the sales contract of this case, to judge that "O.O.O. of October 2002" is the payment date.

E. Sub-committee

Therefore, the disposition of this case, from June 1, 2014 to June 1, 2014, which was the starting date of imposition, cannot be deemed unlawful since the year to which the transfer income tax accrued from the transfer of real estate in this case belongs to 2003, and the disposition of this case, which was conducted within the 10-year exclusion period under Article 26-2 (1) 1 of the Framework Act on National Taxes,

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.