early 2012west0311 (Law No. 112, 03.28)

The transfer of real estate to a third party other than his spouse cannot be considered as the transfer of assets through division of property.

In cases where one spouse transfers assets to a third party, not due to the division of property, not due to the division of property, the transfer of assets by the division of property cannot be deemed as the transfer of assets to a third party, and even if the transfer to a third party aims at paying the division of

2012 old-gu 14579 Disposition rejecting capital gains tax rectification

XX Kim

Director of the District Office

November 14, 2012

December 18, 2012

1. The plaintiff's claim is dismissed.

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

The defendant's rejection of a claim for correction against the plaintiff on September 16, 2011 shall be revoked.

1. Details of the disposition;

A. On July 30, 2010, the Plaintiff: (a) transferred the 607.92 square meters of Seoul Yangcheon-gu Seoul Metropolitan Government 000-2 square meters and its ground buildings; (b) the above 000-3 square meters and 227.4 square meters of the above ground buildings; and (c) reported to the Defendant on September 30, 2010, a total amount of KRW 000 (=000 +000 +000) of the transfer income tax for the year 2010.

B. After that, on July 26, 2011, the Plaintiff filed an application for rectification of capital gains tax on the ground that the transfer of the instant real estate was transferred to the Defendant for the payment of the amount of division of property according to a divorce judgment, and does not constitute the transfer of the value subject to capital gains tax, but the Defendant rejected such application for rectification on September 16, 201 on the ground that the transfer of the instant real estate cannot be deemed as the transfer of the said real estate by means of division of property (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3 (including each natural disaster) and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff sold the instant real estate to pay the division of property pursuant to the conciliation protocol (Seoul High Court 2010Reu1401 conciliation protocol) between Gangnam, the former spouse, and actually paid the division of property with the purchase price. As such, the transfer of the instant real estate does not constitute a transfer for consideration subject to capital gains tax. Therefore, the instant disposition that was otherwise reported is unlawful.

(b) Fact of recognition;

(1) On July 30, 2010, the Plaintiff, among the instant real property, transferred to B the instant real property in XX 723-2, and to Y 723-3 real property, respectively.

(2) From the divorce lawsuit (Seoul High Court 2010Reuu1401 conciliation protocol) between the Plaintiff and the former spouse Gangwon-A, the conciliation was concluded on October 27, 2010 that “the Plaintiff paid KRW 000 to Gangwon-A as a division of property.”

[Reasons for Recognition] The above evidence, Gap evidence Nos. 3 through 8, 15 (including each number), the purport of the whole pleadings

C. Determination

Even if the real estate was transferred to the other party by means of division of property at the time of divorce, the transfer of the property by division of property does not include the transfer of the property subject to capital gains tax (see, e.g., Supreme Court Decision 96Nu14401, Feb. 13, 1998). However, if the property is not transferred by reason of division of property, it shall be deemed that the transfer of

In the instant case, the Plaintiff transferred the instant real estate to the Kang, who is the former spouse, instead of transferring the instant real estate to the third party on the ground of the division of property. As such, if the property is not transferred from one of the married couple to the other party on the ground of the division of property, but transferred to the third party on the ground of the division of property, the transfer of the property by the division of property cannot be deemed as the transfer of the property, and even if the transfer to the third party is for the payment of the division of property to the former spouse,

D. Sub-committee

Therefore, since the transfer of real estate of this case cannot be deemed as the transfer of assets through division of property, the disposition of this case, which reported as above, is legitimate.

3. Conclusion

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