High Court Decision 2010-076 (Law No. 24, 2010)

Where the ownership of a third party purchaser is lost due to a compulsory auction due to a registration of provisional seizure made by the original owner to the debtor, the transfer income tax due to the successful bid shall be borne by the original owner.

If a third party purchaser registers a provisional seizure with the original owner as the debtor before he/she receives the registration of ownership transfer after concluding a contract of sale, and loses ownership due to the auction in the procedure of compulsory auction, there is no benefit of transfer acquired by the third party. Therefore, the person liable to pay the transfer income tax due to the auction

2010Gudan20709 Disposition of revocation of imposition of capital gains tax

IsaA

Head of the District Tax Office

September 16, 2011

October 14, 2011

1. The Defendant’s imposition of KRW 13,616, and KRW 597 against the Plaintiff on December 10, 2009 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff received the registration of ownership transfer from Nonparty B on May 30, 1996, based on the final judgment of January 28, 1994, with respect to 1/6 shares (hereinafter “instant entire land”) out of 00-00 forest 0,845 square meters in POri-si, Pakistan-si, Pakistan-si, and 35-12 forest 3,692 square meters (hereinafter “the entire land”).

B. From July 30, 1993 to June 21, 1995, the Plaintiff had completed the registration of ownership transfer, the creditors of leB, and five others, who were creditors of leB, were provisionally seized six times on the entire land of this case. On June 17, 2005, GCC, a provisional attachment creditor, applied for a compulsory auction and sold the entire land of this case to DaD on August 22, 2007.

C. The Defendant issued the instant disposition imposing capital gains tax on the Plaintiff by calculating the transfer value at the actual transaction price, which is the actual transaction price, on the ground that the Plaintiff did not report or pay capital gains tax, on the ground that the instant land was sold to ChoD and transferred, and by determining and notifying KRW 13,616,597.

(c)

[Ground of recognition] Unsatisfy, Gap evidence 2-1, Gap evidence 3-1, 2, Gap evidence 4, 5, Eul

Each entry of No. 1-1 or 4, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

① The Plaintiff is not obligated to pay capital gains tax by cancelling the sales contract for the instant land against leB. Therefore, the instant disposition should be revoked.

② Even if the Plaintiff is liable to pay capital gains tax, the Plaintiff spent 520,000,000,000 as capital expenses to increase the utility value of the entire land of this case. Therefore, the Plaintiff’s necessary expenses should be deducted from the transfer value of 87,33,333, which corresponds to 1/6 of the necessary expenses. On such premise, the portion in excess of the disposition of this case should be revoked.

B. Determination

First, the plaintiff's assertion that the provisional attachment was made against the plaintiff's non-party 3's owner of the real estate, and that the non-party 5's non-party 3's claim for the cancellation of provisional attachment against the non-party 3's right to the above non-party 3's claim for the cancellation of provisional attachment, and that the non-party 3's claim for the cancellation of provisional attachment against the above non-party 3's claim for the cancellation of provisional attachment, the non-party 5's claim for the cancellation of provisional attachment against the plaintiff 1's right to the non-party 3's claim for the cancellation of provisional attachment. The non-party 5's claim that the non-party 3's right to the non-party 5's claim for the cancellation of provisional attachment is no longer effective until April 30 of the same year. The non-party 5's claim that the non-party 3's claim for the cancellation of provisional attachment was no longer effective for the non-party 2's claim for cancellation of ownership.

3. Conclusion

If so, the plaintiff's claim is justified and accepted.