National Tax Service Review and Transfer 2011-0066 ( October 18, 2011)

It is recognized that land has been pre-saleed.

It cannot be recognized that the transferor denies the validity of the re-sale contract, even though it is recognized that the transferor has concluded a sub-sale contract for returning the land to the transferor after acquiring the land, and that the initial sales contract was cancelled or the re-sale contract was fulfilled, unlike the fact that the transferor has not sold the land to a third party by the due date for payment.

2012Gudan1726 Revocation of Disposition of Imposing capital gains tax

NewA

head of Sung Dong Tax Office

January 18, 2013

February 22, 2013

1. The plaintiff's claim is dismissed.

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

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

1. Details of the disposition;

A. From September 24, 2010 to October 13, 2010, the Defendant: (a) conducted a field investigation on the transfer of 1,336 square meters of 00 O-dong O-dong and 1,336 square meters of 00 forest land and 63 square meters of 00 forest land (hereinafter “instant land”); (b) on December 26, 2007, the Plaintiff acquired the instant land from leB and did not complete the registration of transfer; and (c) on November 30, 2009, transferred the instant land to CC at 000 won; and (d) on November 1, 2010, the Defendant issued the instant disposition imposing KRW 00 (including additional tax 00,000, and additional tax 00,000) of transfer income tax for 209.

B. On March 2, 2011, the Plaintiff filed a request for examination with the Commissioner of the National Tax Service on March 2, 201, and on October 20, 2011, when the request for examination was dismissed, the Plaintiff filed the instant lawsuit on January 16, 2012.

[Grounds for Recognition] The non-contentious facts, Gap evidence 2, Eul evidence 1, and the whole purport of the pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

① It was true that the Plaintiff acquired the instant land by entering into a contract to purchase the instant land from leB and paying its price in full, but it was not a construction authorization and permission. Since the sales contract was rescinded on March 20, 2008 or around October 2008, and leB transferred the instant land to CC as its owner, the instant disposition based on the premise that the Plaintiff reselled the instant land to CC on the condition that the Plaintiff had not been registered.

② Even if the agreement was not rescinded, the Plaintiff entered into a re-trade agreement with leB around March 20, 2008 or October 2008, 2000 won of the instant land, and leB transferred the instant land to CC. Thus, the instant disposition that was premised on the Plaintiff’s non-sale of the instant land to CC is unlawful.

③ Even if the Plaintiff’s transfer of the instant land toCC does not constitute the unregistered transfer of the instant land, the amount actually acquired by the Plaintiff during the process of transferring the instant land to 000 won shall be KRW 00,000, and on July 23, 2008, the maximum debt amount of the right to the instant land shall be KRW 000,000 acquired from the loan during the process of increasing the maximum debt amount from KRW 00 to KRW 00,000, and on August 21, 2009, the Plaintiff’s provisional registration on the instant land was established and borrowed from 00,000,000 won acquired from 0,000 won, which was actually acquired from 0,000 won, including the acquisition value of KRW 0,00,000,000, which was actually acquired from 0,000, which was acquired from 0,000,000 won.

B. Determination

(1) Judgment on the Plaintiff’s assertion (1), (2)

(2) Considering that Gap evidence Nos. 3 through 5, Eul evidence Nos. 3 through 12 (including above number Nos. 6, 7, and 9, and some testimony of Sung F are added to the whole purport of the pleadings, and that the plaintiff entered into a contract to repurchase the land at 00 won around October 2008, but the plaintiff did not pay 00 won to the leB by the due date for the settlement of the agreement between the plaintiff and the third party, and that the leB did not request the third party to resell the land at the time of 0.0 percent of the non-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de- re-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-de-con-).

After the fact that leB was unable to pay 000 won to the Plaintiff by March 20, 2009, the leB did not assert the right to dispose of the instant land, and it seems that the leB did not raise an objection against the unregistered resale of the Plaintiff.

At the time of concluding a sales contract with the original leB, the Plaintiff opened the possibility of its own or its own designation or its current owner (leB) in relation to the transfer of ownership, and there is room to view that not only the unregistered resale but also the title trust with the leB was considered.

B. The Plaintiff and the Plaintiff agreed to obtain permission for mountainous district conversion in the initial purchase and sale contract of leB, even though the instant land was land transaction permission zone, but the Plaintiff had the land transaction permission zone cancelled on May 31, 2008, and even though leB was unable to pay the balance of re-trade until March 20, 2009, it seems that the resale was promoted for a third party without completing the registration of ownership transfer in the future.

㉣ 원고는 2008. 3. 6. 이 사건 토지와 인접한 토지인 같은 동 000 외 7필지 및 그 지상 건물을 신JJJ으로부터 매수하는 계약을 체결한 후 2008. 6. 26. 이를 취득하여 2009. 1. 19. 이 사건 토지와 함께 주식회사 II홀딩스에 매도하는 계약을 체결한 적이 있으며， 2009. 11. 30. 이 사건 토지를 이CC이 취득하던 날 위 인접 토지 및 그 지상 건물도 이CC에게 양도하였다. 원고는 이 사건 토지와 위 인접 토지 및 그 지상 건물을 이CC에게 양도한 것과 관련하여 2010. 2.경 위 주식회사 II홀딩스로부터 사기 등으로 고소를 당하였고， 2010. 3.경 위 회사는 그 고소를 취하하였다.

The Plaintiff seems to have opened the possibility of resale to a certain extent by stating the purchaser as “new AA and two other persons” in the sales contract at the time of a sales contract for acquiring the adjoining land and buildings.

On October 2009, the Plaintiff entered into a consulting contract for the development or sale of the above land on the premise that he had the right to use or ownership of the land of this case and its neighboring land with HH service (representative F) around October 2009, and leB seems to have not been a party to the contract, but to have issued a written consent for the use of the land of this case.

Pursuant to the reasoning of the judgment below, each of the following facts are satisfied: (a) on November 30, 200, 200 won of the purchase price of the instant land was paid to 000 won by the High Village Agricultural Cooperative; (b) on November 30, 2009, the amount of the right to collateral security and provisional registration established on the instant land was cancelled; and (c) on deposit to the High Village Agricultural Cooperative Account of Kim E, the Plaintiff’s obligation related thereto was repaid to 00 won; and (d) on December 2, 2009, the remaining amount was deposited into the new bank account of leB; (c) on December 2, 2009, the amount of KRW 00 out of the above money deposited into the account of leB was delivered to the Plaintiff as a check of several heads; and (d) the amount of KRW 00 was delivered or remitted to the Kim EE side on the date of resale or credit transfer; and (d) on December 20, 2000, it appears that the money was paid from the above le account transfer.

A person who colored KimE, which appears to have led to the transfer of thisCC, is not a leBB with the request from the Plaintiff. Even if KimE received part of the delegation from leB with respect to the sale during the transfer process, this seems to be merely a difference between leB and leB with respect to the Plaintiff’s unregistered resale.

On December 3, 2009, immediately after the acquisition of the land in this case, the Plaintiff paid KRW 000 to H Services (representative F) Co., Ltd. as consulting fees, and it appears that the payment for aiding the sale and purchase of the land in this case is also included, and it seems that leB did not have paid the above company or Kim E with consulting fees.

(2) Judgment on the Plaintiff’s assertion

The Plaintiff’s transfer value is KRW 00, and the acquisition value is KRW 00,00, and the transfer value is KRW 00,000. Ultimately, the Plaintiff’s assertion that the difference between the transfer value and the acquisition value is not a necessary expense, and there is no legal basis to regard the above KRW 00 as the acquisition value deductible from the transfer value under Article 97 of the Income Tax Act, the capital expenditure, and the transfer cost, and so forth. We first examine whether the Plaintiff’s assertion that 00,000 won was acquired from 0,00 won for the instant land, and that 0,000 won was purchased from 0,00 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 20,000 won for 30,000 won for 20,000 won for 20,000 won for 30,000.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.