early 2010 Heavy051 ( October 21, 2011)

It is not enough to recognize the fact that the sale is not registered.

It is reasonable to deem that the sales contract with a third party was performed as it is because the sales contract was invalidated due to the failure of the transferee to pay the balance and the down payment was made, and the down payment was later executed as a penalty, and since the contract was concluded with a third party and the ownership transfer registration was completed, it is difficult to deem that the contract was made as it

2011Guhap5620 Transfer detailed and revocation of disposition

Maximum XX

The superintendent of the tax office

March 8, 2012

March 29, 2012

1. The disposition of imposition of capital gains tax of KRW 00,000,000 on each real estate listed in the separate sheet that the Defendant rendered to the Plaintiff on November 14, 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;

The following facts are not in dispute between the parties:

A. On July 31, 2007, on May 28, 2007, the Plaintiff transferred each real estate listed in the separate sheet (hereinafter referred to as the “each real estate of this case”) to the XX industry (hereinafter referred to as the “P industry”) at KRW 0 billion. The Plaintiff reported and paid KRW 0,000,000 for each real estate of this case with the content that the acquisition value of each real estate of this case is KRW 0,000,000 for each real estate of this case.

B. On November 14, 2009, based on the results of the investigation by the Director of the Central Tax Office, the Defendant: (a) deemed that each of the instant real estate was not unregistered for the Plaintiff ? KimAA ? KimB ? ? the actual transferee of each of the instant real estate from the Plaintiff; and (b) on the ground that the transfer value is not KRW 0 billion but KRW 0 billion; (c) added the omitted KRW 00,000 to the transfer value of each of the instant real estate, the Defendant issued the instant disposition to correct and notify the Plaintiff of KRW 0,00,000,000 for the transfer income tax of 207 pertaining to each of the instant real estate.

2. Whether the instant disposition is lawful

A. The issues of the instant case

The plaintiff did not know the fact that the real estate of this case was not unsold in the "Plaintiff ? KimA ? KimB ?" and did not know the fact. ② On March 13, 2007, the plaintiff concluded a sales contract with KimA with regard to each of the real estate of this case by setting the sales price of 0 billion won, but on the wind that KimA paid 00 million won as the down payment and the remainder of the remainder, etc., the above sales contract expired, and confiscated as penalty; ③ the introduction of KimA, as of May 7, 2007, the sales contract was concluded between KimB and the actual business owner of the XX industry, setting the sales price of each of the real estate of this case as 0 billion won, and the plaintiff did not transfer the remainder of the real estate to the plaintiff under the name of the tenant of KimB on May 7, 2007, as well as the above sales contract.

On the other hand, the defendant asserts that although the title of the ownership transfer registration of each of the instant real estate was transferred from the plaintiff to the XX industry, the actual transaction was unregistered for the "Plaintiff ? KimAA ? KimB ?". In that process, all of the money paid to the plaintiff from KimA, KimB, XX industry, etc. should be included in the transfer value of each of the instant real estate provided to the plaintiff by KimA on May 7, 2007 on the premise that the plaintiff was paid for the transfer of each of the instant real estate to KimA, and the above KRW 00 million remitted by KimCC on May 7, 2007.

Ultimately, the key issue of the instant case is whether the actual transaction was made by the Plaintiff’s involvement or conspiracy, regardless of the title of the ownership transfer registration of each of the instant real estate transferred from the Plaintiff to the XX industry, and whether the said KRW 00 million, which the Plaintiff paid to the Plaintiff on May 7, 2007 by KimCC, and whether the said KRW 00 million, which the Plaintiff transferred to the Plaintiff on May 7, 2007, constitutes the transfer price received by the Plaintiff in return for the transfer of each of the instant real estate (hereinafter “instant 2 issues”).

(b) Fact of recognition;

The following facts may be recognized by taking into account the respective descriptions of Gap evidence 1 (including paper numbers), 2, 3, 5, and Eul evidence 3 and 4 and the overall purport of the arguments.

1) On March 13, 2007, the Plaintiff entered into a sales contract for each of the instant real estate (hereinafter referred to as the “first sales contract”) with KimA, and the payment of the purchase-price was made by KimA to take over the attachment obligation equivalent to the bank loan amounting to KRW 0 billion, the lease deposit obligation amounting to KRW 000,000,000,000,000 from each of the instant real estate, and the attachment obligation equivalent to KRW 00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000 won.

2) Accordingly, KimA paid to the Plaintiff KRW 00 million on March 13, 2007, KRW 00 million on April 11, 2007, KRW 00 million on April 13 of the same year, and KRW 00,000 on April 13 of the same month as the down payment and remainder of the above sales contract, but (hereinafter referred to as “the down payment, etc. in this case”) was unable to perform the obligation to dispose of the instant singing, etc. as agreed upon, on April 20, 2007, a notary public of the Republic of Korea KKK KK Law, etc., and on April 30, 2007, the sales contract in this case was made out and delivered to the Plaintiff with the purport that the contract in this case was null and void (hereinafter referred to as “the instant contract in this case”).

3) On May 7, 2007, through KimB, the Plaintiff entered into a sales contract with respect to each of the instant real estate with the XX industry, setting the sales price of KRW 0 billion, the down payment of KRW 0 billion, and the balance of KRW 0 billion (hereinafter referred to as the “second sales contract”). The payment of the remainder is to substitute for the obligation of bank loans equivalent to KRW 0 billion, the lease deposit obligation equivalent to KRW 000,000,000,000, and the seizure obligation equivalent to KRW 000,000,000,000,000,000.

4) Accordingly, upon receiving the remittance of KRW 100 million from KimCC on May 7, 2007, the Plaintiff completed the registration of ownership transfer for each of the instant real estate in the name of the XX industry on the 28th of the same month, and thereafter received the additional transfer of KRW 00 million on July 5, 2007, and KRW 100 million on August 6, 2007 from KimCC in cash.

C. Determination

1) First of all, the first sale contract of this case concluded between the Plaintiff and KimA should be presumed valid and the second sale contract of this case should be presumed to be a disguised contract for concealing the fact that the sale of this case, which was concluded between the Plaintiff and KimA, is not a disguised contract for concealing the fact that the sale of this case was not registered, in order to recognize that the actual transaction, as alleged by the Defendant, was not unregistered through the Plaintiff’s involvement or conspiracy, notwithstanding the title of the ownership transfer registration of each real estate of this case transferred from the Plaintiff to the XX industry.

However, according to the above facts, since KimA did not perform the remaining payment under the sales contract of this case and the disposal promise of the instant singing book, the above sales contract becomes null and void on April 30, 2007, as stipulated by the deed signed by the private person of this case, and the down payment of this case was confiscated by the plaintiff as a penalty, and accordingly, on May 7, 2007, the contract deposit of this case was concluded between the plaintiff and the XX industry and the plaintiff on May 7, 2007, and it is reasonable to view that the above sales contract was fulfilled as it is because the cash amount in the name of the down payment was paid to the plaintiff and the transfer registration of ownership in the name of XX industry was made with respect to each of the real estate of this case. Accordingly, it is difficult to readily believe that each statement of the above sales contract of this case was consistent with the defendant's argument, and there is no evidence to acknowledge that there was any lack of evidence to acknowledge any involvement by the plaintiff in the public offering under Articles 5, 6 Eul (this document written by the plaintiff and KimA.

2) Next, the first sale contract of this case, including the down payment of this case, was confiscated as a penalty on April 30, 2007 due to the nonperformance by KimA as to the second issue of this case, as seen above. Since the first sale contract of this case became null and void on April 30, 2007, as long as the first sale contract of this case became null and void on April 30, 2007, the first sale contract of this case, which was remitted to the Plaintiff by KimCC on May 7, 2007, shall not be deemed to be part of the purchase price pursuant to the first sale contract of this case, and there is no other evidence to prove otherwise.

3) Ultimately, each of the instant real estate was transferred from the Plaintiff to the XX industry in accordance with the instant 2 sales contract between the Plaintiff and the relevant industry. As such, the instant disposition, based on the premise that the transfer price between the Plaintiff and the KimA was KRW 0 billion, was unregistered for each of the instant real estate to the Plaintiff ? KimAAB ? KimB ?, and that the instant disposition, based on the premise that the transfer price between the Plaintiff and KimA was KRW 0 billion, was erroneous.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.