Daejeon District Court 201Guhap1612, 2012

Cho Jae-chul2010 Before 3957 (Law No. 111, 2011)

It is recognized that real estate has been purchased and unregistered.

It is difficult to recognize that real estate has been unregistered and that real estate brokerage fees, etc. have been paid to the original seller in light of the fact that the sales contract was directly involved in the preparation of the sales contract and the fact that the sale price was paid directly to the original seller in the process of resale of real estate and the buyer received the total

2012Nu1585 Revocation of Disposition of Imposing capital gains tax

XX

Daejeon Head of the District Tax Office

Daejeon District Court Decision 201Guhap1612 Decided June 27, 2012

November 8, 2012

December 13, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 000 against the Plaintiff on September 1, 2010 is revoked.

2. The purport of appeal is the same;

1. Details of the disposition;

This Court's reasoning is the same as the corresponding part of the judgment of the court of first instance. Thus, this Court's reasoning is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The plaintiff introduced the real estate of this case from AB to purchase the real estate of this case by introducing it from AB, and there was no unregistered resale of the real estate of this case, and the sales contract (Evidence A 4, hereinafter referred to as "the sales contract of this case") in which the plaintiff was the seller, and the plaintiff was the buyer was forged by A.

(2) Even if the Plaintiff sold the instant real estate without registration, it was erroneous for the Plaintiff to have failed to deduct expenses, such as real estate brokerage fees, and the purchaser under the instant sales contract entered the Plaintiff and two others, so the Plaintiff only obtained gains from transfer equivalent to 1/3 shares of the instant real estate (the Plaintiff asserted that there was a procedural error in the process of hearing only the Plaintiff’s husband’s statement prior to the instant disposition at the first instance court, but the Plaintiff withdrawn the said assertion at the trial).

(3) The instant disposition on a different premise must be revoked in an unlawful manner.

B. Determination as to whether the Plaintiff sold the instant real estate unregistered

(1) Facts of recognition

(A) The Plaintiff’s E, the representative director of which is the Plaintiff, provides management services as a maintenance and improvement project manager under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, by concluding a service contract with the establishment promotion committee of the City Environment Improvement Project Association in the Daejeon Central-gu Seoul Metropolitan City, with the “Si Environment Improvement Project Promotion Committee” to implement the renewal project of the XX dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-gu.

(B) On March 25, 2004, the Plaintiff concluded a sales contract for the instant real estate with KimF, a seller of KimCC (hereinafter “the first sales contract”), and drafted the instant sales contract with the seller and the Plaintiff and two other parties as the buyer. On March 25, 2004, the Plaintiff transferred the down payment amount of KRW 000 to the passbook of KimF, and paid the remainder to KimF [the Plaintiff alleged that the instant sales contract was forged by this case’s head of the Tong (the death of April 15, 2009), but it is difficult to believe that some testimony of the witness EE of the first instance court corresponding thereto was prepared in light of the above facts of recognition, and it is insufficient to acknowledge this otherwise, and there is no other evidence to acknowledge this. The Plaintiff’s assertion is rejected.]

(C) In the course of the Defendant’s tax investigation regarding the transfer of the instant real estate, the original seller KimCC: (a) written confirmation that the Plaintiff transferred the instant real estate to the Plaintiff at KRW 000; (b) written confirmation that the assignee KimB acquired the instant real estate from the Plaintiff; and (c) written confirmation that the Plaintiff paid KRW 000,000,000, excluding the rental deposit, to the Plaintiff; and (b) written confirmation that the Plaintiff’s husband MaD borrowed funds from the UE and concluded the instant sales contract with the Plaintiff, but the Plaintiff had sold the instant real estate to KimB for the purpose of protecting the down payment due to insufficient financial resources to pay the remainder; and (c) written confirmation that the Plaintiff sold the instant real estate to the Plaintiff under the name of the Plaintiff.

(D) The process of the sale of the instant real estate by KimB

1) KimB had resided in Seoul at the time of the purchase of the instant real estate, and this GG, who was an employee of XX that he had been aware of at the time of the purchase, recommended the purchase of the instant real estate to purchase the instant real estate on the Daejeon side because XX had an investment value in redevelopment project.

2) In order to prepare a sales contract on April 20, 2004, KimB met all persons involved in the sales contract at the coffee shop in Daejeon. KimB was sitting in the same table as GG and on other table tables, two persons were sitting in the same table as this day first, and on the other table table, he was seated up to two persons who do not know about HH as the first day. He was in the two table table, and he was in need of taking the seals of KimB, and he did not directly prepare a sales contract (hereinafter referred to as "the second sales contract that was concluded by KimB as a purchaser").

3) From April 2, 2004 to April 22, 2004, KimB deposited KRW 000 in the Plaintiff’s OE account, the Plaintiff’s OE account. On April 19, 2004, UE transferred KRW 000 to the Plaintiff and paid KRW 000 thereafter.

4) After the completion of the registration of transfer of ownership in the name of the pertinent real estate, KimB received a contract by mail. Contrary to the fact, KimB stated that the seller was the EE or KH, not the EE or KH, and the purchase price is less than that paid by the Plaintiff, and this GG was based on its circumstances, and it was said that the seller made an unregistered pre-sale in XX.

5) KimB paid expenses related to the transfer of ownership to a certified judicial scrivener office.

[Ground of recognition] Unsatisfy facts, Gap evidence 1-2, Gap evidence 4, 5, Eul evidence 4, 5, Eul evidence 6-1 through 5, Eul evidence 7-1, Eul evidence 8-1, Eul evidence 9-1, Eul evidence 17, part of Eul evidence 1-2, Eul witness KimB testimony of the court of first instance, the purport of whole pleadings

(2) Determination

In light of the following circumstances revealed by the above facts of recognition, it is reasonable to determine that the Plaintiff purchased the instant real estate from the KimCC and subsequently sold the instant real estate to KimB. Accordingly, the Plaintiff’s above assertion is without merit.

(A) In addition to the fact that the Plaintiff was directly involved in the preparation of the instant sales contract, and if the Plaintiff introduced only the sales contract between KimB and KimCC as the Plaintiff’s assertion, it should have received a down payment, etc. from KimB and transmitted it to KimCC. The Plaintiff paid the down payment of the first sales contract to the purchaser of the second sales contract before receiving the payment of the purchase price from KimB, the purchaser of the second sales contract, at his own expense, and paid the first sales contract in full.

(B) The Plaintiff directly intervened in the process of resale of the instant real estate to KimB, and received full payment of the purchase price for the secondary sales contract that was remitted to KimB-E, and there is no evidence to prove that the Plaintiff delivered the said money to LeeB-E, contrary to its assertion.

(C) The original seller KimF and the buyer KimB made a statement to the effect that all of the instant real estate was purchased and sold by the Plaintiff. In the course of tax investigation, the Plaintiff’s husband MaDD prepared and submitted a written confirmation to the effect that the Plaintiff sold the instant real estate in the name of the Plaintiff. Although the Plaintiff offered a false statement to the husband that he sold the instant real estate in spite of her husband’s refusal to do an act related to the real estate, the Plaintiff asserted that the husband sold the instant real estate in spite of her husband’s refusal to do so, and the husband believed that her reliance was prepared the said written confirmation. However, even if her husband who did not want to do an act related to the real estate, it is not easy to understand that the Plaintiff sold the said real estate, even if she actually sold the real estate, it was false that the Plaintiff sold the real estate, as the Plaintiff actually introduced the real estate, it was difficult to believe the Plaintiff’s assertion as it is.

C. Judgment on the plaintiff's conjunctive assertion

(1) As to the assertion that expenses such as real estate brokerage commission should be deducted

(A) Considering that necessary expenses in a lawsuit seeking revocation of taxation are favorable to taxpayers, and most of the facts that generated necessary expenses are located in the area under the control of taxpayers, and that it is easy to prove such necessary expenses are located in the area under the control of taxpayers and thus, it accords with the concept of fairness to recognize the necessity of proof to taxpayers by allowing presumption of non-existence with respect to necessary expenses for which taxpayers do not perform the duty of proof (see Supreme Court Decision 2002Du1588, Sept. 23, 2004).

(B) Regarding the instant case, although the Plaintiff asserted that there was an error in the omission of deduction of the brokerage commission for licensed real estate agents and the transfer registration fee for ownership in the process of resale of the instant real estate, the Plaintiff did not provide any proof as to how much of the expenses were incurred without disclosing the specific details. Meanwhile, considering the overall purport of the pleadings in each statement No. 15-1 and No. 2 submitted by the Defendant, the Plaintiff’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s payment of KRW 00 of the brokerage commission during the course of the tax investigation, the submission of the receipt (Evidence No. 15-2) is insufficient to find that the Plaintiff paid the brokerage commission to the instant real estate, and there is no evidence to find otherwise. Furthermore, according to the facts acknowledged above, according to the fact that KimB paid the transfer registration fee for ownership to the instant real estate, the Plaintiff appears to have paid the brokerage commission for the purchase and resale of the instant real estate through XX, etc.

(2) As to the assertion that only the transfer margin corresponding to 1/3 shares of the instant real estate was obtained, etc.

Considering that the fact that there are other buyers than the plaintiff is favorable to the taxpayer, such as the above necessary expenses, and that it is easy to prove the fact that the facts are located in the area controlled by the taxpayer, the verification of the plaintiff who is the taxpayer is in accord with the concept of fairness.

Nevertheless, only the Plaintiff asserts that there is another purchaser, and there is no proof as to who is the purchaser. Moreover, even after examining all the evidence submitted in the instant case, it cannot be found that there was another purchaser other than the Plaintiff in the instant sales contract. Therefore, it is difficult to accept the Plaintiff’s assertion that there was another purchaser other than the Plaintiff in the instant sales contract.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and since the judgment of the court of first instance is unfair, the defendant's appeal shall be accepted and the judgment of the court of first instance shall be revoked and the plaintiff's claim shall be dismissed as per Disposition.