[양도소득세부과처분취소][미간행]
Where a sales contract is terminated by agreement due to disputes related to the performance of a sales contract even if a sales contract was concluded for a real estate and the proceeds of the sale are fully paid, whether a disposition imposing capital gains tax on the seller under the premise that the seller has income from the transfer is unlawful (affirmative), and whether a disposition can be contested separately from a request for correction, in cases where a subsequent cause, such as cancellation of contract, occurs after a tax authority imposed a
Articles 88(1), 94(1), and 98 of the Income Tax Act; Article 162 of the Enforcement Decree of the Income Tax Act; Article 548(1) of the Civil Act
Supreme Court Decision 2001Du5972 Delivered on September 27, 2002
Plaintiff
The Director of the Pacific District Office
Seoul High Court Decision 2014Nu50813 decided October 14, 2014
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
Even if a sales contract for real estate was concluded and the transfer price was received in full, if the sales contract was terminated by dispute related to the performance of the sales contract, the above sales contract becomes retroactively null and void. Therefore, the disposition imposing capital gains tax on the seller on the premise that there was an income from the transfer of the seller is unlawful. Even if there is a claim for correction based on the cancellation of the contract, such as cancellation of the contract, even if there is a claim for correction due to the occurrence of a subsequent cause, such as cancellation of the contract, after the taxation by the tax authority, the disposition itself can be argued separately (see Supreme Court Decision 2001Du597
citing the reasoning of the judgment of the court of first instance, the lower court: (a) concluded a sales contract with Nonparty 1 to sell the instant land and Gu building for KRW 3.2 billion (hereinafter “instant sales contract”) on July 7, 2008; and (b) received KRW 500 million out of the sales price; (c) Nonparty 1 received loans from financial institutions as security from the Plaintiff on July 30, 2008; and (d) paid KRW 2.180 million in intermediate payment to the Plaintiff by August 20, 208; (c) paid the remainder of KRW 520 million in total to the Plaintiff by August 20, 208; (d) the Plaintiff and Nonparty 1 agreed to rescind the instant sales contract with Nonparty 1 on July 3, 2013; and (e) paid the remainder of KRW 305,000 to Nonparty 25,500,000,000 to the Plaintiff on the ground that the Plaintiff transferred the remainder of the instant loan obligation by subrogation to Nonparty 25.
Furthermore, the lower court determined that the instant disposition against which the Plaintiff imposed capital gains tax on the premise that the Plaintiff transferred the instant land and the building to acquire capital gains tax on the ground that the instant sales contract was rescinded due to the dispute relating to its implementation and that it cannot be deemed as the act of pretending to be the act.
In light of the above legal principles and records, the above fact-finding and determination by the court below are just, and contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the effect of transfer and rescission of agreement.
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.
Justices Jo Hee-de (Presiding Justice)