National High Court 1991bu0743 ( December 31, 1991)

Capital gains

Dismissal

The acquisition agreement (title change) is merely a formal measure rather than a type of transaction contract, and is not recognized as an actual transaction agreement.

Article 81 of the Framework Act on National Taxes (Application Mutatis Mutandis of Provisions)

I dismiss the appeal.

1. Facts;

The claimant acquired 400 square meters (hereinafter referred to as "contest land") from 88.3.28 (Contract Date) and transferred 88.4.16 (Contract Date) to 7 other than OOOO, etc. in the state of non-registration, as the claimant has a domicile in OOOOOOOOO in Gyeongdong, Gyeongnam-si, and transferred 400 square meters (hereinafter referred to as "contest land") to 88.3.28 (Contract Date).

The agency determines capital gains on the basis of the actual transaction value (acquisition 128,000,000, transfer 260,000,000) on August 1, 90, on the ground that the above transaction falls under an unregistered and short-term transaction, and notifies the disposition agency of KRW 23,760,000 and its defense tax amount of KRW 23,760,000;

On March 27, 91, the claimant appealed and filed an appeal for adjudication.

2. The claimant's assertion;

After entering into a purchase contract with the 88.3.28,00,000 won for the land at the time of the purchase (the purchaser shall take all administrative measures to ensure that it does not interfere with the completion of the apartment construction by obtaining authorization, permission, etc. for the establishment of the kindergarten before the completion of the apartment), the claimant has entrusted the selection of the contractor to the OOO(OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO's certificate of personal seal impression (for the purpose of delegation) held by the OOOOOOOO's office, he may enter into a contract with the OOO(OOOOOOOOOOO that was an employee.

As such, a sale contract entered into by OO without any authority by misrepresenting it as an agent of the claimant is naturally null and void.

After that, the claimant, who became aware of this fact, tried to find out the OO, but already missing, entered into a contract with 8 OOO et al. on November 23, 200 and approved it by the OO et al. at the same time as the change of 89.9, the claimant had no choice but to sell the land at issue as a result of the contract because the claimant entered into a contract with 8 OO et al. at the same time with 8 OO et al. at the same time as the change of the owner of the building (the change of the name) with 8 OO et al. at the time of the change of the owner.

As such, the sale contract in wartime 8.4.16 is null and void, and the acquisition contract in November 23, 88 is valid. The claimant's sales contract is 120,000,000 won.

3. Opinions of the Commissioner of the National Tax Service;

The transfer value of this case without dispute over the acquisition value (128,00,000) is confirmed to have been traded in 260,000,000 won in the statements of the OO and OOO, the buyer, and 88.4.16, in the statements of OO other than the claims of an individual, is confirmed to have been 260,00,000 won in the statements of OO;

In conclusion, if the claimant receives 120,000,000 won from September 5, 88, and submits an application for change of the name of the land use to the OO, etc. to the OO, the claimant himself/herself recognized the sales contract as impliedly, 88.4.16, and even if the OO, which is the agent, received and embezzled 140,000,000 won as the down payment and the intermediate payment, has not been returned to the OO, this part is a matter different from this case, and thus, it is reasonable to impose the initial disposition that the claimant acquired 128,000,000 won for the short time and transferred it to the 260,000,000 won for the short time to the OO transaction.

4. Issues

This case acknowledges the validity of the sale contract at April 16, 88, as effective, the validity of the original disposition that determines the transfer value as 260,000,000.

5. Hearing and determination

(1) First, examining the substance of this case and the claims

90.3. As a result of the Masan District Prosecutors' Office having jurisdiction over the information that this case transaction of the claimant's transfer is unregistered, the Claimant's Office notified the claimant of the fact that the claimant's counter-party to the claim was evaded the transfer income tax without reporting it up to May 31 of the next year after purchasing 400 square meters from 88.3.28, 128,000,000 won and selling 88.4.16,000 won to 8,000,000 won, and then selling it, it confirmed that the Claimant's counter-party to the claim was evaded the transfer income tax by 90.30.30,000 won.

As seen above in the exhibition place, the claimant entered into a contract for purchase of 128,00,00 won (the sales price under the contract is 80,000,000 won or 128,000,000 won from the prosecutor's investigation) with the land on the issue of O's ownership at 88.3.28,00,00,00,000 won (the sales price under the contract is 80,000,000, or from the prosecutor's investigation), but the land at issue is a kindergarten site located in the 5th apartment complex where the OO was newly constructed and sold on the part of the OO, and there is a special agreement that the purchase condition at the time is to obtain the authorization for establishment and building permit from the above apartment before the completion of the apartment and take all administrative measures so as not to interfere with the completion of the apartment construction.

The OO abused this is naturally null and void as an unauthorized contract, and the 88.4.16 contract was concluded with OO or other 7 and the 88.4.16 contract was concluded with O or other O or any other O or any other 88.28.28 that the O or any other O or any other 16 contract was concluded with O or any other O or any other 80.80 O or any other 80 O or any other 80 O or any other 80 O or any other 80 O or any other 80 O or 80 O or any other 80 O or 80 O or any other 80 O or 80 O or any other 80 O or any other 80 O or any other 80 O or 80 O or any other 80 O or any other 80 O or any other 80 O or any other 80 O or any other 810 80 O or any other 810130.

(2) Examining the following relevant contracts, etc.:

The key land on which a kindergarten site was located was located within the OOO 5 apartment complex, where an OOO 5th apartment complex was newly constructed as an OO construction owner. However, the OO's establishment of a kindergarten, which is an ancillary welfare facility, in connection with the apartment project, was under the conditions for project approval pursuant to Article 4 (5) of the Enforcement Decree of the Housing Construction Promotion Act, and the O tried to own establish the apartment. However, it was determined that the sale nature after the construction was insignificant, and the purchase value was sold to the applicant for the land on which the kindergarten site was located under the conditions for the opening of the kindergarten. In light of the instant sales contract made between the claimant and the OO construction, it was confirmed that the sales value was 80,000,000 won, but it was revealed in the investigation by the prosecution, and that the actual transaction value was 128,000,000,000 won;

In light of the 88.4.16 sales contract related to the transfer value of this case, it is confirmed that the applicant’s certificate of personal seal impression (for the purpose of delegation) and the OOO holding the power of delegation enter into a contract with six persons other than OOO on behalf of the claimant (the name of six persons under the contract was not indicated) and the copy of the sales contract was used in wartime 88.3.28.28. The contract form was 88.4.16 receipt (22,00,000), 88.4.30 intermediate receipt (40,000,000), 88.5.5.9.5 (120,000,000,000) received directly by the claimant, and 8.8.5 (20,000,000,000 won).

The fact that the sales value of this case is KRW 260,00,000 as a result of the prosecutor's investigation is stated by the purchaser's OO orOO, the purchaser is not the above seven persons, but five persons, and the OO which was the purchaser's representative at the time of the contract is verified by the prosecutor's investigation records that the cancellation was made in the middle of the complicated problem due to OO relations;

In addition, when 88.11.23 transfer contract (title change) is examined, it is confirmed that 8 applicants and OOOOs et al. affix their signatures and seals on the application form for transfer approval attached to the original contract of 8.3.28.28 and O construction stated "the approval form for change of name such as additional registration" in the original contract of 88.3.28.28.

(3) The issue is whether the transfer value is KRW 260,000,000 (the disposition office) or 120,000,000 (the petitioner), in which case the above matters are collected and the case is ultimately without dispute over KRW 128,00,00,00,000, which is ultimately at issue;

88.4.16 The claimant has become a party to the contract and inevitably transfers the disputed land, and there is somewhat little understanding that the claimant has transferred the land;

First, while the 88.4.16 sales contract between the OOO and 6 other trust the OO which held the power of attorney accompanied by a certificate of personal seal impression as the Claimant's representative and the 88.4.16 sales contract between them seems to be justifiable, there is no evidence or circumstance that the OOO is an unauthorized representation contract, and there is no evidence or circumstance suggesting that

Second, even if the purchase and sale contract for domestic exhibition 88.4.16 is recognized as non-exclusive contract, it is reasonable to view that the claimant himself ratified the sale contract for 88.4.16th of Apr. 16, 200, which was received from the counter-party to the transaction without denying the fact that the purchase and sale price for this case was 260,000,000 won, remaining after deducting the amount which the OO received previously from the counter-party to the transaction without denying the fact itself;

Third, as the disposition agency also stated, the acquisition by transfer contract (title change) of 88.11.23 is merely a formal measure taken by the O side to adjust the register in relation to the transfer of ownership of the land in question as at the time when the claimant resells the land in question without registration, rather than a type of the transaction contract, and it is not recognized as a real transaction contract.

The 88.4.16 contract is null and void at the time of the combination of the above matters, and the 88.11.23 contract is valid, and the 120,000,000 transfer value based on this is deemed to be groundless unless there is a special reason.

6. Conclusion

This case shall be decided as ordered in accordance with Articles 81 and 65(1)2 of the Framework Act on National Taxes, since it is recognized that the petition for appeal is groundless as a result of the review.