Cheongju District Court 2008Guhap1486 (2.05, 2009)

early 208 Jeon 1122 (Law No. 23, 2008)

Declaration of Intention to cancel a real estate sales contract

Unless there is any assertion as to the cancellation of a contract for the sale and purchase of real estate, the declaration of intention for cancellation is unlawful unless there is any assertion as to the fact that the contract constitutes a case where the performance has been notified for a reasonable period of time or the intention of not performing it

The contents of the decision shall be the same as attached.

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

Purport of claim and appeal

The decision of the first instance court is revoked. The defendant revoked the disposition of imposition of KRW 521,281,781 on December 17, 2007 against the plaintiff on December 17, 2007 (the disposition of imposition of KRW 699,942,080 as stated in the petition of appeal seems to be a clerical error in the disposition of imposition of KRW 521,281 as stated in the petition of appeal because the defendant was corrected before filing the appeal of this case).

1. Circumstances of the disposition;

A. On November 24, 2004, the Plaintiff jointly purchased the instant land with ○○○○○○○, 593-2, 593-6, 593-8, 593-10, 593-11, 593-16, 593-18, 593-22, 593-23, 593-24, 593-25, 593-26, 593-27, and 13 lots of land (hereinafter “the instant land”) owned by ○○○○○○○, ○○○○, ○○○, ○○○, ○○, ○○, ○○○, ○○○, in order to raise the purchase fund, and the registration of the transfer was made under the name of △△△, etc., and was included in the title of △△△, etc. at the time of the registration of the transfer of ownership in the instant land.

B. The instant land was designated as an speculation area on July 20, 2005, where the instant land was located in the ○○ Northern sound area where the land was located.

C. On May 30, 2006, the Plaintiff reported the transfer income tax on the instant land to the Defendant based on the actual transaction value, and reported the transfer value of the said land to KRW 520,000,000, and paid KRW 41,580,000.

D. On December 17, 2007, the Defendant corrected the transfer value of the instant land based on the actual transaction value as KRW 2,716,279,876, and determined and notified the Plaintiff of KRW 69,942,080 for the transfer income tax of 2005, but, on February 16, 2009, after the court of first instance sentenced the transfer value of the instant land to KRW 2,156,081,99, and corrected the reduction by 521,281,781 for the imposition of KRW 521,281,781 (hereinafter “instant disposition”).

[Reasons for Recognition]

Facts without dispute, evidence No. 1, evidence No. 15, evidence No. 15, evidence No. 15, evidence No. 2, evidence No. 6-1, 2, evidence No. 7, evidence No. 14-1 through 7, and the purport of the entire pleadings

2. Whether the dispositions of the instant case are legal.

(a) relevant statutes;

The entries in the attached Table-related statutes are as follows.

B. The assertion and judgment

(1) Whether the contract for the sale of the land of this case was cancelled

The plaintiff asserts that the disposition of this case, based on the premise that the transfer of the land of this case occurred, is unlawful since the plaintiff declared that the contract of this case, including the land of this case, was cancelled on the ground of the non-performance of the obligation to pay the purchase price of this case, and that the contract of this case became retroactively null and void. According to each of subparagraphs 1 and 2 of the evidence Nos. 12 and 13-2, the plaintiff sent a written notice to Seongbuk-gu and Kim Young-ri on March 31, 2009 that the plaintiff would cancel the sale contract of this case on the real estate of this case on the ground of the non-performance of the obligation to pay the purchase price of this case, and that the written notice was reached to the Sung-si and Kim Young-ri around the same time. However, the plaintiff's assertion that the contract of this case constitutes a case where the plaintiff notified the cancellation of the sale contract of this case for the real estate of this case by setting a reasonable period of time, or it is not required to clarify the intention to not perform in advance.

(2) Time of transfer of the instant land

(A) The plaintiff's assertion

The Plaintiff asserts that even if the sales contract on the instant real estate, which was entered into with Sung-si and Kim Young-ri, still remains effective, since the purchase price on the instant real estate among the instant real estate was liquidated around March 31, 2005, the said date shall be deemed the time of transfer of the instant land. As such, the instant disposition imposing capital gains tax on the basis of the actual transaction price on the premise that the instant land was transferred after the designation of the speculative area was illegal.

(B) Facts of recognition

1) On November 24, 2004, the Plaintiff, including both the instant land and the counter used as the gas station site and the building, each of the land owned by ○○ Red, and the building similar to the instant building (hereinafter referred to as “the instant real property”), sold at KRW 3.2 billion to Masan, but decided to take over the collateral security obligation of 2 billion won (the maximum amount of claims) with the right to collateral security (the maximum amount of claims amount of KRW 2.6 billion) in the name of the National Bank established on the instant land.

2) Pursuant to the above sales contract, Seongdong-gu paid the Plaintiff KRW 300 million on the day of the contract, and KRW 600 million on March 31, 2005 (including KRW 200 million borrowed by the Plaintiff prior to the above sales contract) to the Plaintiff, while Lee Dong-gu and Lee Hong demanded that the purchase price of the instant real estate owned by him be paid KRW 240 million on their own, and paid KRW 200 million on their own.

3) Meanwhile, the Plaintiff failed to obtain the consent to the acceptance of the collateral security obligation, which was established on the instant land from the National Bank of Korea, and agreed to jointly purchase the instant land in consultation with the Seongdong-gu and the Kim Young-ri, which had the right to the collateral security obligation, and to first transfer the ownership of the instant land in the name of Seongdong-gu and Kim Young-ri, and completed the registration of ownership transfer of the instant land in the name of Kim Young-ri on the 29th of the same month.

4) On March 20, 2006, the Plaintiff had Sung-si take over the obligation of provisional attachment on November 21, 2005 in the name of the Korea Credit Guarantee Fund established in the real estate of this case on the basis of the payment of the remaining purchase and sale price for the real estate of this case on or before November 21, 2005, and the Plaintiff was paid 50 million won, out of the remaining price of KRW 215 million, until March 31, 2006, up to KRW 165 million until July 31 of the same year.

5) The Plaintiff did not pay KRW 147 million out of the remainder of the above payment, and the judgment became final and conclusive on May 9, 2008 by filing a lawsuit claiming the loan of Cheongju District Court 2007Da1128 against Sung-ju District Court 2007Da1128 with the amount of the above amount and damages for delay.

[Reasons for Recognition]

Each of the above evidence, evidence Nos. 4, 5, 7, 8, evidence No. 9-1 through 25, evidence Nos. 10 and 11, and evidence No. 17, and the purport of the whole of the arguments and arguments No. 17

(C) Determination

According to the above facts, as to whether the purchase price of the instant land was settled before December 29, 2005, which was the date of the receipt of the registration of ownership transfer, after the designation of the speculative area on the instant land, the Plaintiff agreed to pay KRW 3.2 billion by combining the instant land owned by the Plaintiff, without distinguishing the purchase price, from the instant land owned by the Plaintiff at the time of entering into a sale and purchase contract on the instant land, and each of the instant land owned by ○○-gu, ○○ Red, and buildings owned by ○○-le, without distinguishinging the purchase price. In addition, the Plaintiff filed a civil lawsuit against Sung-si, etc. on the ground that the purchase price was unpaid, including the instant land, and notified of the cancellation of the contract. In light of the above circumstances, the Plaintiff should be deemed to include the price of the instant land in the purchase price that the Plaintiff was not paid from Seongbuk-si and Kim Jong-dong, and thus, the allegation that the purchase price was liquidated before the registration of ownership

(3) Whether the transfer constitutes a long-term installment transfer

(A) The plaintiff's assertion

Since the instant real estate sales contract constitutes a transfer on a long-term installment basis, and thus, the instant disposition that imposed capital gains tax on the basis of the actual transaction price is unlawful, on the premise that the instant land was transferred after the designation of the speculative area, on December 24, 2004 or January 31, 2005, which began to be used or profit from the instant real estate including the instant land pursuant to Article 162(1)3 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254, Dec. 31, 2005).

(B) Determination

According to Article 78 (3) of the former Enforcement Rule of the Income Tax Act (amended by Ordinance of the Ministry of Finance and Economy No. 015 of Apr. 29, 2008), the term "long-term installment condition" refers to the transfer of assets and the receipt of sales proceeds in installments at least twice in a monthly, yearly, or by other installments. ② It refers to the receipt of the transfer registration of ownership of transferred assets from the date of delivery or the date of use and profit-making to the date of the last installment payment for at least one year. The determination of whether the above long-term installment transfer constitutes the above long-term installment transfer should be made depending on whether the sales contract was made under the conditions corresponding thereto, regardless of the circumstances of the parties. However, there is no evidence to acknowledge that there was an agreement that the above long-term installment transfer requirements at the time of conclusion of the sales contract for the real estate of this case constitutes the above long-term installment transfer requirements, and this part of the claim is without merit.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is so decided as per Disposition.