Seoul High Court 2011Nu2813 (Law No. 20, 2011)

Cho High Court Decision 2010Du0354 (Law No. 21, 2010)

Compensation incurred in the course of resale of the right to sell shall not be deducted from capital gains.

Where the sale right has been resold through several persons, but the liability for damages has been omitted in the course of the last change of name, since there is no legal relationship between damages due to default or tort and capital gains, the amount of damages shall not be deducted from the transfer value or deducted from the acquisition value as necessary expenses.

Article 88 of the Income Tax Act

2011Du24859 Revocation of disposition of revocation of capital gains tax imposition

Section AA

Head of Mapo Tax Office

Seoul High Court Decision 2011Nu2813 Decided September 20, 201

December 26, 2013

The appeal is dismissed.

The costs of appeal are assessed against the Plaintiff.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The lower court, citing the reasoning of the judgment of the first instance, determined that the actual owner of the portion equivalent to the above damages cannot be seen as BB, solely on the ground that the Plaintiff paid OOB as damages on the ground that the Plaintiff failed to implement the procedure for change of the name of the buyer of the right to sell the instant parcel of land to B.

In light of the relevant legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the substance over form principle, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

"The court below, citing the reasoning of the judgment of the court of first instance, found that the plaintiff's OOOOO paid to BB for the purpose of acquiring the right of sale in this case or because it was merely impossible for BB to implement the procedure by transferring the right of sale in this case to the know-how despite the plaintiff's obligation to implement the procedure of change in the name of the buyer of the right of sale in this case. Thus, the court below did not err in the misapprehension of legal principles as to the transfer income tax by calculating the transfer margin without deducting the above transfer value from the transfer value and by calculating it as necessary expenses, and in light of the relevant provisions of Article 97 (1) 1 (a) and 2 of the former Income Tax Act (amended by Act No. 9897 of Dec. 31, 2009), Article 163 (1) and (3) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034 of Feb. 18, 2010).

3. Conclusion

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 on the bench.