Gwangju District Court 2012Guhap3965 ( October 24, 2013)

early 201luminous2396 (Law No. 112, 05.31)

Although the registration of ownership transfer has been completed after the conclusion of the sales contract, if the sales contract was rescinded by agreement for non-performance of the remaining payment obligation, the sales contract becomes retroactively null and void.

When concluding a sales contract for real estate, the registration of ownership transfer has been completed in advance for the buyer, and if the buyer cancels the sales contract due to the buyer's failure to fulfill his obligation to pay the remainder, the sales contract is retroactively null and void. Therefore, the imposition of capital gains tax on the premise that the seller has any income from the transfer of

Article 88 (Definition of Transfer) of Income Tax Act

2013Nu1682 Invalidity of a disposition imposing capital gains tax

JAA

Head of the North Mine District Tax Office

Gwangju District Court Decision 2012Guhap3965 Decided October 24, 2013

March 20, 2014

April 10, 2014

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The Defendant’s disposition of imposition of the capital gains tax for the year 2008 on December 8, 2010 on the Plaintiff is revoked each exceeding the KRW OO of the imposition of the capital gains tax for the year 2008, and exceeding the KRW OO of the imposition of the additional tax for the capital gains tax for the year 2008 on December 3, 2012.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and the plaintiff's claim against the revocation shall be dismissed.

1. Quotation of judgment of the first instance;

The grounds for this court’s opinion on this case are as follows, except for adding or adding the following among the grounds for the judgment of the court of first instance and adding the judgment on the defendant’s argument of the trial, Paragraph 2 below, as stated in the reasoning of the judgment of the court of first instance (including the list of land, the calculation of the conversion acquisition value, the calculation details of the amount of tax, and the part related to the related Acts and subordinate statutes), and thus, it shall be cited pursuant to Article 8(2) of the Administrative Litigation

【Supplementary or Additional Parts】

○ The second 1.(b) part of the second 1.(b) shall be as follows:

The Plaintiff sold the instant three parcels to ChoB, etc. on April 4, 2008 and April 8, 2008, and completed the registration of ownership transfer on April 21, 2008.

○ From June 2, 2012, around 31 May 2012, 2012

○ 3. A’s evidence Nos. 4-1 through 3, and 5-1 through 5’s evidence Nos. 5 are added to the third (founded grounds for recognition).

The evidence submitted by the Defendant Nos. 1 through 2 of the fifth page alone is insufficient to reject the above entries, and the evidence submitted by the Defendant alone alone is insufficient to recognize that the part concerning the cancellation of a sales contract among the above agreements was equipped only with the form of rescission of a contract in order to evade capital gains tax, and it is difficult to reject the above entries.

○ Each of the instant real estates in the 6th (B), 3, 7, and 8 types of land each of the instant real estates is advanced as land of this case.

2. Judgment on the defendant's argument of the trial

A. The defendant's argument

The cancellation of the sales contract on December 8, 2010 on the parcel of this case among each of the instant lands between the Plaintiff and the GCC does not exercise the right of statutory rescission on the ground of nonperformance, but it is recognized as a termination of an agreement newly concluded between the parties after the establishment of the instant tax claim and the validity of the future is not recognized. Therefore, the instant disposition that was duly established is lawful.

B. Determination

If a contract for transfer is rescinded by agreement and a registration for cancellation has been made, the effect of any change in the real right due to the performance of the contract is retroactively extinguished, and thus the transfer subject to capital gains tax shall be deemed never to have existed (see, e.g., Supreme Court Decision 92Nu17884, May 11, 1993). In this case, as seen earlier, the effect of the transfer of ownership pursuant to the above sales contract is retroactively extinguished by the Plaintiff’s rescission of the sales contract and registration for cancellation of the contract on 47 parcels of each of the instant land between YCC and YCC, as seen earlier. Therefore, the Defendant’s aforementioned assertion on a different premise is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.