Cho Jae-2014 Medium-990 (Law No. 126, 2014)

The date of the instant land sales contract shall be deemed the date of the contract, and it is difficult to deem that the purchase price that the Plaintiff was not paid is impossible to recover claims.

Since an auction procedure to exercise the security right to the instant land is irrelevant to the implementation of the instant sales contract, the sale date pursuant to the said procedure cannot be deemed as the registration date pursuant to the instant sales contract. It is difficult to deem that there was no possibility of realizing capital gains due to the Plaintiff’s impossibility of recovering the outstanding purchase price claims.

Enforcement Decree of the Income Tax Act Article 162 (Time of Transfer or Acquisition)

2014-Gu Partnership-57363 Disposition of revoking capital gains tax

AA

o Head of the tax office

October 20, 2015

December 2, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s imposition of the capital gains tax for the Plaintiff on July 5, 2013 on the part exceeding the OO (including additional tax) of the imposition of the capital gains tax for the year 2009 shall be revoked.

1. Details of the disposition;

A. Conclusion of a sales contract

1) On May 29, 2008, the Plaintiff entered into a sales contract with BB with respect to the purchase price of OOOO 3,587§³ (hereinafter “the land of this case”) with respect to the purchase price of OO (OOOO 2,33 square meters (hereinafter “the land of this case”) (OOO 3,587 square meters); ② OO OO 2 (OO 2,269 square meters (hereinafter “the land of this case”) with respect to the purchase price of OO 2,33 square meters (the contract price O 2,000,0000,000 won) with respect to OO 2,033 square meters (hereinafter “O 3,000,000 won”) (hereinafter “the land of this case”); and the sales contract of each of these cases is 90,000,000 won (hereinafter “the land of this case”).

2) At the time of the conclusion of the instant sales contract, the Plaintiff and BB drafted a sales purchase agreement with the following terms:

1. The land Nos. 2 and 3 of this case is under way permitted as a site for Class I neighborhood living facilities, and the land No. 1 of this case, which is currently an agricultural and forest area, cannot obtain permission. As such, registration under the name of the Plaintiff, which is the land owner, shall be preserved for each land of this case due to the land transaction permission area, and in principle, registration of transfer shall be made at the time of sale to a third party.

2. 현재 허가 진행 중인 필지에 관한 인허가를 득한 후 2개월 이내에 잔금을 지급하고, 원고는 잔금 지급 솝 이 사건 각 토지를 담보로 대환처리 및 다른 은행으로부터 추가 대출을 받을 수 있도록 필요한 서류 일체를 제공하여야 하되 위 각 토지에 대하여 담보제공만 하여 준다. 대출 시 잔금은 완불한다.

5. The Plaintiff shall immediately submit all documents necessary for authorization, permission, and other civil petitions to the respective land of this case, if the BB desires.

B. Details of the division and transfer registration of each of the instant lands

1) Each of the instant lands was divided as indicated in the details of land division registration in attached Form 1 from January 12, 2009 to July 22, 2009.

2) On December 26, 2008, BB concluded a sales contract of the instant land Nos. 1 and 2 on December 26, 2008 between cc and DD on the premise that the said land would be divided as above, and completed the registration of ownership transfer in the name of cc and DD with respect to each of the instant land on February 16, 2009, on the condition that the instant land Nos. 1,322 square meters of OOOO forest and riO forest, 1,008 square meters of riOO forest and riO forest, 622 square meters of riO forest and riO forest, and 386 square meters of OOO forest among the instant land No. 2, OOOO forest and riO forest, and completed the registration of ownership transfer in the name of c and DoD with respect to each of the instant land.

3) On the other hand, on May 12, 2009 and August 20, 2009, BB made the registration of the establishment of a mortgage on the land No. 1 of the instant case with EE as the mortgagee with regard to the land No. 10,635 square meters of OOO-type O-type O-type O-type O-type O-type O-type O-mortgage. On October 22, 2008, BB completed the registration of the establishment of a mortgage on the land No. 2 of the instant case with EE as the mortgagee, and completed the registration of the establishment of a mortgage on the land No. 3 of the instant case with regard to the maximum debt amount, OO-type, and O-type, respectively, as the mortgagee. On October 22, 2008, EE-mortgage was established.

The establishment registration of a mortgage, which is the maximum amountOO, was completed for the maximum amount of claims.

4) BB obtained a total amount of OOO from EE through the creation of a collateral security right, such as the foregoing 3-mortgage, but failed to repay it. Accordingly, FF purchased each of the instant 3-land in Suwon District Court 2012 in the auction procedure for exercise of the security right (attached Form 1) by EE, such as the details of land division and transfer registration, 10,635 square meters of OOO in the instant land among the instant 1-land, and GGG purchased each of the instant 41-5 square meters of Masung map 41-5, 688 square meters in the instant land, 41-8 square meters in the instant land, 41-9, 023 square meters in the instant land, and 3 square meters in the instant land.

(c) Payment relationship of the purchase price;

1) BB pursuant to the instant sales contract to the Plaintiff from May 29, 2008 to December 7, 2009

A total amount of OOO was paid for the purchase price.

2) BB filed a lawsuit against the Plaintiff with Suwon District Court 2010 GohapO on November 5, 2010 against the Plaintiff for the performance of land transaction permission procedures, and the said court constituted conciliation as follows:

1. The Plaintiff, among the instant land Nos. 1 and 3, and the instant land Nos. 2, performed land transaction permission procedures for the chemical market based on the instant sales contract with respect to the land Nos. 1 and 1,668 square meters for the OO-type O-type O-type O-type O-type 1,68 square meters, O-type 289 square meters for the same O-type O-type 3,023 square meters

2. (a) BB shall pay to the Plaintiff an OO by April 30, 201.

B. At the same time, the Plaintiff received the money listed in the above paragraph (a) from BB, and simultaneously implemented the registration procedure for ownership transfer of each real estate listed in paragraph (1) to BB.

(d) Imposition of capital gains tax;

1) On February 16, 2009, the head of the Suwon District Tax Office: (a) on the instant land, the Plaintiff transferred ccc and DD the 1,322 square meters of OOO forest in the lusium of the instant land; (b) 1,008 square meters of lusium forest in the lusium of the same lusium; (c) 622 square meters of lusium of the same lusium; and (c) on January 2, 2012, the Plaintiff did not report the transfer income tax on each of the said land on the transfer of OO forest in the lusium of the instant land; and (b) on January 2, 2012, the head of the Suwon District Tax Office imposed the imposition of the transfer income tax on the Plaintiff of OO for the 2

2) On December 7, 2009, the Defendant determined that the Plaintiff received most of the transfer proceeds and actually transferred them on the part of the land other than the land listed in the above paragraph (1) (hereinafter referred to as the “instant land”), and issued a corrective disposition (including additional tax; hereinafter referred to as “the disposition of this case”) to increase the transfer income tax KRW OO as an OO won as of July 5, 2013 against the Plaintiff, the Defendant issued an order of correction (including additional tax; hereinafter referred to as “the portion exceeding the originally notified OO won in the disposition of imposition of transfer income tax by OOO won”).

[Ground of Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4-1 through 12, Eul evidence Nos. 1, 2, 3-1 through 3, 4, 5, 9 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's cause of claim

1) The time of the transfer of the instant land ought to be the time when the auction procedure for exercising the security right to the said land was completed and the purchase price was paid. The transfer price for the said land ought to be deemed the auction price.

2) Unlike housework, the Plaintiff’s purchase price OOO that was not received from BB should be excluded from capital gains as unrealized gains.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) According to Article 4(1)3 of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009; hereinafter the same), with respect to the Plaintiff’s assertion as to the Plaintiff’s claim as to Article 4(1)-1 of the said A-B, capital gains subject to capital gains tax refer to the income accrued from the transfer of assets, such as ownership of land, etc., such as ownership. Here, when ownership of land is acquired as a price for acquisition of land as well as the ownership completed the registration, it is reasonable to regard the concept as including the actual ownership that leads to the degree that the compensatory benefit was almost fully performed by social norms (see, e.g., Supreme Court Decision 92Nu8934, Apr

As to the instant case, the Plaintiff and BB concluded the instant sales contract for each of the instant land, including the key land. The Plaintiff and BB concluded the instant sales contract for the purchase price for each of the instant land, which is an OO, and the KRW 2010 of the purchase price under the instant sales contract was determined as OO, and the amount of the purchase price accrued in the course of a claim for land transaction permission between the Plaintiff and BB was determined as Suwon District Court 2010 as OO, and the fact that the sale price for each of the instant land was in accordance with the sales contract concluded by BB as to the entire land or the third party’s ownership transfer registration was completed due to the fact that it was impossible for the Plaintiff to obtain the aforementioned facts and the purport of the entire arguments. In other words, the Plaintiff’s conclusion of the sales contract for the instant land and the remainder of the purchase price for each of the instant land were not set to be sold to the third parties without specifying the date of payment for each of the instant land, and the Plaintiff paid the remainder of the purchase price for each of the instant land to the Plaintiff.

In full view of the fact that BB appears not to exercise any particular right, such as demanding the rescission of the instant sales contract or demanding the payment of any balance, etc., until filing a lawsuit claiming the performance of the land transaction permission procedure with Suwon District Court 2010 OO, and the auction procedure for exercising the security right to the instant land is irrelevant to the execution of the instant sales contract, and thus the sale date pursuant to the said procedure cannot be deemed as the registration date pursuant to the instant sales contract, it is reasonable to deem that the Plaintiff actually transferred the instant land by receiving almost all the purchase price of each of the instant land on December 7, 2009.

Therefore, this part of the Plaintiff’s assertion on a different premise is without merit.

2) As to the Plaintiff’s assertion as to the Plaintiff’s above A-2

The Income Tax Act adopts the so-called principle of confirmation of a right to taxable income, deeming that a right that is a cause of income has been realized when there is no income in reality, and adopts the so-called principle of confirmation of a right that calculates taxable income: Provided, That even if a claim that is the cause of income has arisen, if it is objectively apparent that a claim that is the cause of income subject to taxation becomes impossible to recover due to the debtor's bankruptcy, etc. and it becomes impossible to realize the income in the future, the income tax that is the object of economic benefits loses its premise, and such income cannot be imposed on taxable income by asserting and proving such circumstance. However, it should be clearly stated that the taxpayer has no income subject to taxation by asserting and proving such circumstance. In such a case, whether the claim is impossible to recover shall be determined by an objective method of assessment by taking into account the debtor's asset situation and payment ability (see Supreme Court Decision 201Du1536, Oct. 25, 2002).

In full view of the record of Gap evidence No. 5 and the fact-finding results of this court's fact-finding, Eul retains currently has real estate or automobiles registered and recorded in its own name.

It is not true that BB has no global income from 2008 to 2014 except for the Plaintiff’s global income report in 2009 and OOO's global income in 2013. However, in full view of the respective descriptions and arguments set forth in subparagraph 11 and 12, BB serves as the representative director of HH, a real estate consulting company with the head office set forth in O, 102, as BB serves as the head office set forth in O, 100 and 1,000 non-listed stocks issued by III, and the non-listed stocks of HH, and 1,0000 non-listed stocks issued by III, and that it is difficult to conclude that BB had no possibility of concluding that the Plaintiff had no other claim for division or sale of each of the instant land as part of the instant development project and that it was concluded for the purpose of realizing the ownership transfer registration to DD as part of the agreement.

Therefore, even if the Plaintiff did not receive the OO of the purchase price from BB, the amount should not be excluded from the transfer income.

Therefore, this part of the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

(c)