Seoul Central District Court 2013 Gohap57658 ( October 30, 2014)

In order to become unjust enrichment, the defect of the taxation disposition should be null and void as it is significant and apparent.

In order to make an unjust enrichment, the tax payment or the collection of the tax must be null and void as there is no legal basis at all under substantive or procedural law or the defect of the tax assessment is significant and apparent.

Article 94 of the former Income Tax Act

2014Na2042347 Undue gains

The right of sale of the housing site was inherited independently.

D. On January 11, 2007, Korea Land Corporation confirmed and decided persons subject to relocation measures, and accordingly, the Plaintiff was accordingly determined.

Site No. 0-1 B-7 of the Housing Site between the Korea Land Corporation and the Korea Land Corporation on March 9, 2007

261m2(hereinafter referred to as “the instant multi-resident housing site”) entered into a sales contract with respect to the instant multi-resident housing site, following:

B B on May 31, 2007, 121,971,000 won (sale contract amount) of the ownership of the housing site of this case between the sale and the sale of the housing site of this case

41,971,00 won + A sales contract stating that the premium is sold to 80,000,000 won; and

between the Korea Land Corporation and the ParkB on the same day, the Korea Land Corporation and the Korea Land Corporation on the housing site of the migrants of this case

The sale right of a re-resident housing site is the same as the transfer value and acquisition value and there is no transfer margin.

The defendant shall have made a mistake in calculating the gains on transfer on the basis of the acquisition value (0 won) of thisA.

Ultimately, even in the case where the instant disposition is seen as such, the laws and regulations governing the calculation of capital gains.

There is a serious defect in use, and therefore, the defendant cannot be relieved of the invalidation of use as a matter of course.

Division 149,982,400 won in aggregate of the capital gains tax and additional charges paid by the Plaintiff following a disposition of imposition

There is a duty to return by benefit of the party.

B. Defendant’s assertion

The Defendant transferred the instant re-sale right to the instant housing site and received the price therefor.

ThisA’s capital gains tax liability was established, and that liability was established for the Plaintiff, the inheritor of thisA.

The disposition of this case was taken on the assumption that the defendant succeeded to the ownership of the unsettled housing site.

Even if there was an error in the misapprehension of the legal principles as to the time of establishment, such a defect is significant and apparent.

Therefore, the plaintiff's assertion is without merit.

3. Determination

For the purpose of making an unjust enrichment, the collection of taxes or taxes is substantial and legally.

B. If there is no legal basis in terms of procedural law or the defect of the taxation is significant and apparent

It shall be null and void as a matter of course, and when the defect of the taxation disposition is unreasonable to the extent that the revocation can only be made.

(1) If the tax authority voluntarily revokes such revocation or is not revoked by an appeal procedure, it shall

The payment of one tax cannot constitute unjust enrichment (Supreme Court Decision 94Da28000 delivered on November 11, 1994).

RR

Korea

Seoul Central District Court 2013Kahap57658

.03.24

2015.23

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the money ordered to be paid below shall be revoked. The defendant shall pay to the plaintiff the amount calculated by applying 5% per annum to the plaintiff from December 1, 2008 to April 23, 2015, and 20% per annum from the next day to the day of complete payment.

2. The plaintiff's remaining appeal is dismissed.

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

4. The part on which money is paid under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall be the plaintiff from December 1, 2008 to the plaintiff of this case.

Until the service date of a copy of the complaint, 5% per annum and 20% per annum from the next day to the day of complete payment.

pay the calculated amount of money.

1. Basic facts

(a) ThisA is the ○ City owned by it following the implementation of the Korea Land Site Development Project;

The land of ○○-19, Dong-dong, was transferred to the Korea Land Corporation. Accordingly, it was expected that the land of ○○ City Housing Site Development Zone should be granted from the Korea Land Corporation the right to purchase the housing site of ○○ City Housing Site Development Zone (hereinafter referred to as the "right to purchase the housing site of the migrants").

B. On February 23, 2006, thisA entered into a sales contract to sell the instant migrants’ housing site ownership right to be acquired as above to ○○○○, upon which the said sales contract agreed to bear the buyer’s capital gains tax and taxes imposed under the name of the seller. Accordingly, thisA was paid by ParkB the down payment on the date of the contract, and the remainder ○○ on March 10, 2006, respectively.

C. ThisA died on June 2, 2006, and the Plaintiff, one of his co-inheritors, who was one of his co-inheritors, may receive the benefit of the Korea Land Corporation from the Korea Land Corporation through an agreement on the division of inherited property with other co-inheritors on June 23, 2006.

content that ParkB succeeds to the rights and obligations under a sales contract between the parties;

The contract for succession to rights was concluded.

E. After that, on June 19, 2007, the Plaintiff transferred the ownership of the instant housing site to the head of the tax office of ○○.

Transfer income amount of 80,000,000 won (transfer value of 121,971,000 won - Acquisition value of 41,971,00 won)

As a result, the capital gains tax was paid by filing a report.

F. However, the director of the regional tax office may transfer income tax on the transfer of ownership of the instant migrants’ housing site.

The purpose of this study is to transfer the right to sell the housing site of the said migrants to the ParkB on February 23, 2006.

The relocation of this case on January 11, 2007, which is the date of confirmation and determination of the person subject to the relocation measures for the Korea Land Corporation.

The sale date and the transfer date of a housing site shall be 250,000,000 won and those which are deposited by ParkB in the plaintiff's account.

288,00,000 won, including 38,362,000 capital gains tax paid by ParkB, shall be the value of transfer:

Transfer income tax on the transfer income from the sale of the housing site of the migrants due to the death of thisA;

Transfer income tax of 149,982,400 won for the transfer income tax of 2007, November 3, 2008, to the Plaintiff who succeeded to the obligation for payment.

notice that any additional tax shall be paid (which shall include additional tax and which shall be deducted).

A disposition of imposition was taken on December 1, 2008 (hereinafter referred to as “instant disposition of imposition”). The Plaintiff made a payment on December 1, 2008.

The Court stated that the company was not a party.

G. However, on August 25, 2011, the transfer income tax following the transfer of the instant resettled housing site by ParkB

Upon reporting, KRW 150,000,000 paid to the Plaintiff for the expenses of mediation was added to the acquisition value;

Accordingly, on August 20, 2012, the director of the tax office of ○○ Tax Office has the right to sell the instant migrants’ housing site to the Plaintiff in addition to the Plaintiff.

order to pay 101,542,980 won in addition to the capital gains tax for the year 2007 pursuant to the Do

A corrective disposition was issued on October 11, 2012. The Plaintiff appealed and filed an appeal on October 11, 2012, but on March 2013.

1. Upon receipt of a decision of dismissal on April 19, 2013, capital gains tax under the head of Suwon District Court 2013 short-term ○○ on April 19, 2013;

The director of the tax office subsequently filed a lawsuit to revoke the disposition of revocation of the imposition.

The plaintiff revoked the disposition of revocation of the capital gains tax imposition, and the plaintiff withdrawn the lawsuit.

[Ground of Recognition] Facts without dispute, Gap evidence 1 to 10, Eul evidence 1 and 2, the whole pleadings

purport of this chapter

2. The parties' assertion

A. The plaintiff's assertion

The right to sell the housing site of the migrants in this case is 2007 where the housing site creation business operator confirmed and decided the persons subject to the countermeasures of migrants.

1. Since the occurrence of November 1, 200, the acquirer of the ownership of the instant resettled housing site is the plaintiff, and the plaintiff is the plaintiff.

It shall be deemed to have been transferred to ParkB, and the defendant shall be deemed to have already died on June 2, 2006.

The sale of the housing site of this case shall be deemed first acquired and transferred, and shall be based on the AA.

The ground that after calculating capital gains, the tax liability has been succeeded to the plaintiff who is the inheritor.

The Plaintiff imposed capital gains tax on the Plaintiff. The instant disposition is eventually deceased EA.

(1) If a tax liability is imposed on the taxpayer, and such defect is significant and apparent, and thus void as a matter of course.

Accordingly, the defendant's capital gains tax paid by the plaintiff according to the disposition of this case.

A total of 149,982,400 won is obligated to be returned by unjust enrichment.

Meanwhile, the Defendant is liable to pay capital gains tax following the transfer of the right to sell the instant housing site to the Plaintiff.

Even if the disposition of this case was made by deeming the person as the person, the amount of capital gains shall be calculated.

the transfer value shall be deducted from the acquisition value, and the plaintiff shall

He/she succeeded to the right to sell the housing site for the migrants, and in the case of inherited property, the actual place at the time of acquisition.

The future value shall be the acquisition value, and the market price as at the time of acquisition shall be the actual transaction value.

In case there is a transaction fact within six months before or after the commencement date of the inheritance, the transaction value.

Since the market price as of the commencement date of this case is recognized as the market price, in the case of the ownership of the migrants, inheritance

A. From June 2, 2006 to June 2, 2006, 3 months before February 23, 2006 between thisA and ParkB

The sales price under the sales contract shall be the acquisition price as the actual transaction price, and therefore this shall apply.

see, e.g., Supreme Court Decision

On the other hand, individual sales contracts are concluded on the basis of the sale on the housing site of migrants and pay the price.

Transfer income tax on the income accrued from the transfer of the ownership of the previous housing site itself;

In the case of imposition, the person first granted the right to purchase the housing site shall confirm the person subject to the relocation measures.

At the time of decision (Supreme Court Decision 92Da35783 Decided May 24, 1994, Supreme Court Decision 92Da35783 Decided May 24, 199

See Supreme Court Decisions 95Nu17007 delivered on September 6, 1996; 95Nu618 delivered on August 23, 1996, etc.

Therefore, it is established only when the right to purchase the housing site for relocation is determined when the person subject to relocation measures.

The legal principle that the decision is finalized is the attitude of consistent precedents since the above Supreme Court Decision 92Da35783.

As much as possible, it is impossible to acquire or improve the ownership of the instant resettled housing site due to the death on June 2, 2006.

The disposition of this case, based on the premise that the transfer income was generated to A, is simply the disposition of this case.

The defect is serious beyond the degree of illegality.

Furthermore, as seen above, thisA has already died on June 2, 2006, and the person who created a housing site.

After the Korea Land Corporation decided to identify a person subject to relocation measures on January 11, 2007 and decided on March 9, 2007

The fact that the Defendant entered into a sales contract with the Plaintiff for the resettled housing site, and the resettled housing site.

The transfer date of the right to sell in lots shall be January 11, 2007 and the year to which the income reverts shall be 2007.

The facts constituting the premise for the instant disposition, such as the fact that the disposition was taken, are objectively apparent.

(c)

Therefore, the disposition of this case is automatically null and void.

Then, the defendant paid to the plaintiff according to the disposition of this case which is void as a matter of course.

The defendant's implementation from December 1, 2008, which was the date of payment of the Do income tax 149,982,400 won and its implementation

date of this decision where it is deemed reasonable to issue an objection to the existence or scope of such

5% per annum under the Civil Act until April 23, 2015, and 5% per annum from the following day to the day of full payment.

The obligation to pay damages for delay calculated at the rate of 20% per annum under the Act on Special Cases Concerning Medical Treatment, etc.

(2) the Corporation.

4. Conclusion

The plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is accepted.

(2) The judgment of the court of first instance is without merit, and the judgment of the court of first instance is without merit.

Therefore, among the judgment of the court of first instance, the part against the plaintiff falling under the above part ordering payment is revoked.

The Defendant ordered the payment of the above money, and the remainder of the Plaintiff’s appeal is dismissed for lack of good cause.

this decision is delivered with the judgment of the court.