[우병탁의 절세통통(㪌通)]To avoid disputes over ‘transaction at loss’ of pre-sale rights… There must be a clear agreement on how to pay transfer tax｜Dong-A Ilbo

Due to the popularity of new construction, pre-sale ticket sales are popular.
When paying transfer tax, transfer tax increases repeatedly
There are no stipulated regulations on the number of tax additions.
To avoid conflict, there must be a clear agreement

Woo Byeong-tak, Shinhan Bank Premier Pathfinder expert, As pre-sale rights transactions have increased recently, the premium attached to the pre-sale price is rising. A ‘transaction at loss’ has even emerged where the buyer pays the seller’s capital gains tax instead. A transaction at loss means a transaction based on the amount the seller actually holds in hand. This is a method in which the buyer pays the transfer tax that the seller must pay, and the remaining amount after deducting the tax is adjusted to the premium market price.

For example, if the pre-sale right is sold for an amount exceeding 400 million won, the transfer tax (based on a tax rate of 66%) is approximately 260 million won. The actual profit is 140 million won. However, in a transfer transaction, the buyer pays the transfer tax, so the seller keeps the entire 400 million won. The buyer who paid the transfer tax on his behalf actually bought it for an additional amount of 660 million won.

This kind of money transaction itself is not illegal. As the supply of new apartments falls short of demand, the surcharge attached to pre-sale rights has only increased, and it is no different from pre-sale rights transactions. Of course, like a general housing transaction, the sale amount must be reported including the excess money. A ‘down contract’ where a lower amount is reported is illegal.

One thing you need to be careful about when transacting with loss is the transfer tax. If the buyer pays the seller’s transfer tax instead, the amount paid by the buyer to the seller increases. This is no different from an increase in the sale amount of the pre-sale rights, that is, the transfer price. As the transfer gains and tax base increase, the transfer tax ultimately also increases. If the buyer also bears the increased transfer tax, the sale price increases again and the transfer tax increases again, repeating itself.

In this case, how to calculate the transfer tax? Logically, it should be calculated infinitely repeatedly, but in the past national tax ruling, it was decided to calculate it only once. The authoritative interpretation presented by the Ministry of Strategy and Finance in December last month was also the same.

So, even if the buyer decides to pay the ‘full amount’ of the transfer tax, is it okay to calculate the transfer tax only once and pay the transfer tax? Not necessarily. In a recent national tax ruling, it was held that if the buyer paid both the first and second transfer taxes, the transfer tax must be calculated twice repeatedly according to the agreement.

In the above case, if 660 million won, which is added to the 260 million won paid by the buyer, is considered as a transfer gain and the transfer tax is calculated, an additional transfer tax of 175 million won is incurred. Since the buyer had to pay this 175 million won again, the transfer profit was deemed to have increased to 835 million won, and an additional transfer tax of 116 million won was imposed. Cases like this have happened often in the past.

Ultimately, considering the authoritative interpretation and past judicial decisions, the tax amount may vary depending on the contents of the sales contract. This is because the current tax law does not clearly specify the number of additions. If you sign a contract without knowing this fact, a dispute may arise. Therefore, if the buyer decides to pay the seller’s transfer tax on his behalf, the safest way to avoid disputes is to clearly agree and write down the dispute resolution method from the contract stage.

Woo Byung-tak, Shinhan Bank Premier Pathfinder expert member

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