不動産 競賣의 稅法上 爭點에 관한 연구

A Study on Tax Law Cases in the Procedure of Real Estate Auction

&nbsp;&nbsp;1. CONTENTS<BR>&nbsp;&nbsp;(1) RESEARCH OBJECTIVES<BR>&nbsp;&nbsp;When procedure of real estate auction is started, relevant tax issues are inevitably claimed. The important things are capital gain tax, which is recognized regarding an act of disposition as auction, concerned tax, which is prior to real rights granted by way of security in the procedure of allotment, and value added tax, which is charged to a building in case a transferrer is a business owner. Disputes over the tax law related to the taxation like above in the procedure of auction were studied and examined in this paper.<BR>&nbsp;&nbsp;(2) RESEARCH METHOD<BR>&nbsp;&nbsp;Every issue was studied and analyzed through referring to the relevant documents about the tax law and the civil law, recent precedents by the Constitutional Court and the Supreme Court.<BR>&nbsp;&nbsp;(3) RESEARCH RESULTS<BR>&nbsp;&nbsp;When a guarantor by a material sells the real estate by auction, it is quite harsh that he or she should pay capital gain tax, and also, it is unreasonable to consider auction as the taxability of value added tax. The Supreme Court strictly controls the rage of the interpretation of concerned tax, considering the harmony with security right, which is a proper viewpoint.<BR>&nbsp;&nbsp;2. RESULTS<BR>&nbsp;&nbsp;First, selling the real estate by auction, a guarantor by a real estate loses the right of ownership on the real estate and obtains the right to compensation. At the same time, capital gain tax would be his or her liability. However, many guarantors generally cannot exercise the right to compensation, which causes an excessively harsh result. In addition, when the real estate is transferred to others in the middle of auction, tax paid by the transferrer cannot be reimbursed in advance from the accepted bidding price of the real estate.<BR>&nbsp;&nbsp;Second, the priority of concerned tax is approved in the range not to violate the essential contents of real rights granted by way of security. Also, it is accepted in the national tax, which is charged when taxable capacity is recognized by owning concerned assets giving a possibility to predict prosperity. Therefore, concerned tax should be recognized as it is regulated in the law. That is to say, even though it belongs to concerned tax officially, in case it do not correspond with original intention of the law, the right of preferential reimbursement should not be accepted. Under this point, although a tax officially belonged to gift tax or estate tax, the court denied eligibility for concerned tax, or stubbornly limited the rage of effects of concerned in the right of preferential reimbursement, which is a reasonable precedent.<BR>&nbsp;&nbsp;Third, when 1) a business owner, 2) the condition of a building are adequate, value added tax can be brought about as an issue. When a taxpayer was a debtor, the precedents considered that tax amount was principally not included in the payment of auction, which means that it is not clear how value added tax is charged in auction. Therefore, there is an opinion that auction should be excluded from the taxability of value added tax, which is consistent with the view of this study.