아파트 분양계약의 해제로 인하여 발생한 손실은 양도차손이 아님[국승]
early 2010 Heavy3813 ( October 21, 2011)
Losses incurred due to the cancellation of apartment sale contract shall not be losses from transfer.
The effect of the apartment sale contract shall be retroactively lost due to the cancellation of agreement on apartment sale contract, and the object of the sale contract shall not be deemed to have been transferred, and the loss caused by the cancellation of the sale contract shall not be the loss from transfer, so the disposition rejecting the request for correction
2011Guhap443 The revocation of Disposition Rejecting Transfer Income Tax Refund Claim
Song XX
O Head of tax office
June 2, 2011
July 7, 2011
1. The plaintiff's claim is dismissed.
2. The plaintiff shall bear the litigation costs.
"A disposition rejecting a claim for refund of KRW 13,193,180, which the Defendant made against the Plaintiff on May 31, 2010 for the year 2009, is revoked (as seen in the following reasons, " May 31, 2010" is a clerical error of " October 18, 2010," and "13,193,180,00,000,000,000 won for the capital gains tax" is apparent as 13,193,186,00 won for the above claim as stated in the complaint, and it is apparent that the amount of capital gains tax is 13,193,18
1. Details of the disposition;
A. On December 28, 2009, the Plaintiff transferred heading XX 1315 Dong 1315 Dong 8 Dong 101, and subsequently scheduled and paid KRW 13,193,186 as transfer income tax for the year 2009, using the corresponding transfer income amount as KRW 82,496,383.
B. Around February 23, 2004, Song-A entered into a contract with the Korea Land and Housing Corporation to purchase a lot of 225 square meters for a lot of 276,60,000 square meters located in OO-si, O-si, and paid 27,660,000 won as the down payment (hereinafter “instant sales contract”). On December 23, 2004, the Plaintiff acquired the status of the said buyer from Song-A to the price of KRW 117,660,00 (the down payment of KRW 27,660,000 + premium of KRW 90,000 + premium of KRW 90,000) on December 18, 2009.
C. On May 31, 2010, the Plaintiff filed a final return on capital gains tax for the purpose of seeking a refund of KRW 13,193,186, and KRW 90,000,00,000, as the loss from transfer equivalent to KRW 90,000,00 was incurred due to the cancellation of the agreement in the instant sales contract, and thus, the Plaintiff had a spirit of 82,496,383, as the capital gains accrued in the year 2009.
D. On October 18, 2010, the Defendant rejected the Plaintiff’s claim for refund on the ground that the loss incurred from the cancellation of the instant sales contract was not loss on transfer (hereinafter “instant disposition”).
(2).
E. On November 4, 2010, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but the claim was dismissed.
[Reasons for Recognition] Unsatisfy, Gap evidence 1 to 6 (including each number), Eul evidence 1 and the purport of the whole pleadings
2. The assertion and judgment
A. The plaintiff's assertion
The amount of premium loss KRW 90,00,000 due to the cancellation of the instant sales contract falls under the transfer loss due to the transfer, and thus, it should be deducted from the transfer income belonging to the year 2009. The instant disposition should be revoked on a different premise.
(b) Related statutes;
Article 102 of the Income Tax Act
C. Determination
The loss from transfer under Article 102 (2) of the Income Tax Act is a concept that is a premise of transfer. The effect of the contract for sale in this case is retroactively lost due to the cancellation of the contract for sale in this case, and as a result, the transfer of the Korea Land and Housing Corporation by the seller shall be deemed not to have existed from the beginning, and it shall not be deemed that the plaintiff, who is the buyer, newly transfers the object of the contract for sale in this case to the Korea Land and Housing Corporation or to SongA, the initial buyer. Therefore, the plaintiff's assertion on a different premise is without merit.
3. Conclusion
Thus, the plaintiff's claim is dismissed as it is without merit.