토지거래허가를 배제 또는 잠탈할 목적을 가진 매매계약에 있어서 양도소득세 과세문제 ― 대법원 2011.7.21. 선고 2010두23644 전원합의체 판결의 평석 ― = The problem of transfer income tax in a contract for transaction with a purpose to exclude or encroach on permit of land sale

다국어 초록 (Multilingual Abstract)

Since the past, the Supreme Court has maintained the view that it is not lawful to impose capital gains tax earlier than permission of land transactions as to sales within permitted zones. However, this existing attitude has been changed by full panel of judges' ruling 2010두23644 given on July 21, 2011 to the effect that although it is legal violation or evasion and thus invalid as in a contract for transaction made in the first place with a purpose to exclude or encroach on permit of land sale, it is proper to tax provided that transfer registration still remains without cancellation, treated as valid between the parties concerned, and that the seller has received and hold payments for sale, etc. as an implementation of the contract, even in the transaction within land sale permitted area.
Points at issue regarding this decision are taxation on illegal income, concept and time of transfer. Of these, taxation on illegal income is basically appropriate, but in regard of this decision, it is considered that the Supreme Court has placed exception to taxation not simply because the capital gains is illegal but because the act of person subject to withholding doesn’t fall in ‘transfer’. Besides, since the concept of transfer is the own idea of the tax law, it is not necessary to apply the same concept as private law. In matter of time of transfer, this decision seems to determine it based on the date of payments settlement in tax substantial law and date of completing ownership transfer registration in tax adjective law, which goes against the stipulation of the income tax law, Art 110 clause 1. Thus, the basis should be on payments settlement date in terms of tax substantial law, and land sale permission date in terms of tax adjective law. Although the Supreme Court has not clarified yet why taxation should be applied differently between the above case and its similar issue cases of invalidity, cancellation and revocation, it is considered a part that requires legislation of taxation by clear and reasonable standards. Also, in light of the purport of the above decision, for the past decisions that didn’t impose an acquisition tax in the same case as this matter, opinions will need to be changed toward taxation.