Examination and transfer of national prestige 2010-0217 ( October 02, 2011)

Since a sales contract is cancelled and becomes retroactively null and void, it shall not be deemed the transfer of assets.

Since a contract for sale and purchase of land is cancelled and its effect becomes retroactively null and void, it cannot be deemed that there is transfer of assets, and it cannot be deemed that there is a third party purchaser, who is unable to restore to its original state, the compensation for losses acquired or part of the purchase price, which is not returned

2011Gudan30710 Revocation of Disposition of Imposing capital gains tax

NewAAA

The Director of the Pacific District Office

May 24, 2013

June 14, 2013

1. The Defendant’s disposition of imposing capital gains tax of KRW 000 on the Plaintiff on May 13, 2010 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On February 14, 2004, the Plaintiff sold each land listed in the separate sheet acquired on September 29, 2001 (hereinafter referred to as “instant land”) to Nonparty KimB.

B. On March 29, 2005, the Plaintiff filed a transfer income tax base return with the transfer value of KRW 000, and KRW 000,000 for each of the instant lands, but the Defendant corrected the transfer value at KRW 000 by conducting a field investigation of transfer income tax on the Plaintiff, and rendered the instant disposition imposing KRW 000 on the Plaintiff on May 13, 2010.

C. On July 23, 2010, the Plaintiff filed a request for examination on the grounds that the sales contract for each of the instant land was rescinded, and that it does not fall under the transfer under the Income Tax Act, and that even if it is deemed that the Plaintiff is a transfer of a novel, only the amount actually received should be deemed as the transfer value, but was dismissed on September 2, 201.

[Grounds for Recognition] Unsured Facts, l through 4, and the purport of the whole pleadings

2. The plaintiff's assertion

A. The sales contract for each of the instant lands is confirmed to have been rescinded in the relevant civil procedure due to the buyer’s nonperformance of obligation by KimB, and accordingly, the instant land 1 and 2 were returned to the Plaintiff as the ownership transfer registration was filed, and the transfer, which is a taxation requirement for capital gains tax, cannot be deemed to have been made. Accordingly, the instant disposition that imposed capital gains tax on each of the instant lands is unlawful.

B. Even if the land of this case 3 is sold by auction or transfer to a third party, the acquisition value is KRW 000, while the transfer value did not generate transfer margin of KRW 000, and the disposition of this case imposing transfer income tax on the land of this case 3 is unlawful.

3. Whether the disposition is lawful;

(a)a fact;

1) Details of the conclusion and change of the sales contract between the Plaintiff and KimB

① On February 14, 2004, the Plaintiff decided to sell each real estate listed in the separate sheet (hereinafter referred to as “the real estate of this case 1 through 3”) acquired on September 29, 2001 to Nonparty KimB for KRW 00,000, and the down payment was paid until February 9, 2004, and the registration of ownership transfer was completed prior to the payment of the full purchase amount. In addition, the Plaintiff and KimB agreed to operate a tower in each of the instant land, and KimB decided to obtain permission from the competent authorities, and if the permission is not granted within six months, the Plaintiff would complete the registration of ownership transfer on the instant 2 and 3 real estate, and the Plaintiff would hold total assets, such as profits, at KRW 51% and KRW 49% equity (hereinafter referred to as “Agreement”).

② Accordingly, on February 9, 2004, the Plaintiff received down payment of 00 won from KimB, and on February 20, 2004, the Plaintiff completed the registration of ownership transfer concerning each of the instant real estate to KimO, and on March 24, 2004, KimB completed the provisional registration of the right to claim ownership transfer against the Plaintiff regarding the instant 2 and 3 real estate.

"Third, the plaintiff and KimB agreed to hold 5% of the total assets including earnings under the Arrangement No. 1 on June 30, 2004 and 95%, and when KimB paid 00 won to the plaintiff, the above 5% shares also were transferred to KimB. In addition, when KimB cancelled the above provisional registration under the plaintiff's name, and if KimB is unable to obtain permission for charnel house business within 19 months, it was completed the registration of ownership transfer with respect to 10,000 square meters among the two and three lands (hereinafter referred to as "Second Agreement"). The plaintiff cancelled the provisional registration." 4. 20 billion won, KimB made 30. 0 billion won under the Agreement No. 20 on May 31, 2005, and 200 won, and 00 won, and 30. 6. 6. 20 billion won, respectively, were to be paid to the plaintiff in the name of 0. 30 billion won, and 36. 06. 30 billion won, respectively, respectively.

⑤ On January 3, 2006, KimB concluded a trust agreement with respect to each of the instant real estate, and completed the registration for transfer of ownership, by stipulating that the beneficiary is KimBD, and the trust period is until December 26, 2006, while the trust period is until December 26, 2006, and the scope of business of Korean land trust is preserved and managed only the ownership on the register.

⑥ On November 3, 2006, KimB agreed that the permission for a charnel business is not granted until October 30, 2007, the above business shall be waived, and each of the instant real estate shall be reinstated in the name of the Plaintiff, and that the return of the down payment and other total amounts paid to the Plaintiff shall not be demanded, and that the sales contract shall be automatically rescinded (hereinafter referred to as the “instant arrangement”).

7) On October 19, 2007, the decision of compulsory auction was rendered upon the motion of the creditor of KimB on the instant three real estate, and on July 17, 2008, KimO completed the registration of ownership transfer at a successful bid. On the other hand, the Plaintiff received 000 won in the above auction procedure.

"⑧ 김BB은 2009. 4. 13. 이CC에게 원고와의 협약에 관한 모든 권한을 위임하였다. 이OO은 김BB의 대리인으로서 2009. 10. 15. 김BB이 2009. 10. 22.까지 원고에게 0000원을 지급하면， 이 사건 매매계약이 그대로 완결되는 것으로 하고， 만일 지급 하지 못할 경우 제3， 4약정 등 기존에 작성한 각서와 약정서에 따르기로 하였으나(이 하제5약정'이라고 한다)， 김BB은 납골당 사업에 관한 허가를 받거나 제5약정에 따 라 원고에게 00000원을 지급하지 못하였다.",⑨ 원고가 이 사건 각 토지의 매매계약에 따라 지급받은 돈의 내역에 관한 원，피고의 주장을 정리하면 다음과 같다.

2) Cancellation of a sales contract

① On June 17, 2010, the Plaintiff asserted KimB as the Seoul Central District Court 2010Kahap61583, the Defendant, and filed a lawsuit for the registration of cancellation of ownership on each of the instant land under the 5 arrangement, etc., and the Plaintiff filed a lawsuit for the registration of cancellation of ownership on each of the instant land. Accordingly, KimB filed a counterclaim for the return of KRW 00,000,000, including the down payment paid to the Plaintiff in the course of the performance of the sales contract, which was 00, whose ownership cannot be recovered, and the estimated amount of damages for the instant three land, excluding appropriate amounts.

② On November 17, 2010, the above court issued an order to cancel the registration of transfer of ownership on each of the instant lands on the ground that the sales contract for each of the instant lands was rescinded by accepting the Plaintiff’s principal claim, and ordered the Plaintiff to cancel the registration of transfer of ownership on each of the instant lands, and the money that the Plaintiff received from KimB in the course of implementing the sales contract was KRW 00,000, which was paid by KimB as scheduled damages according to the third and fourth agreements, and in the course, the Plaintiff failed to perform its obligations even though KimB extended several times as scheduled damages, and in the process, the Plaintiff lost the ownership of the instant three land, and the amount that the Plaintiff paid to the Plaintiff by KimB included the money paid by the Plaintiff for the implementation of the charnel house business, which is not excessive as compensation for damages, and eventually dismissed the counterclaim by KimB on the ground that

③ On the other hand, KimB dismissed the appeal by Seoul High Court 2010Na123952, 123969, and the above judgment was finalized on October 19, 201, and according to the above final judgment, the registration of transfer of ownership on the first and second land in the name of KimB was cancelled.

[Reasons for Recognition] The non-contentious facts 1 to 13 evidence, and the purport of the whole pleadings is determined.

In principle, since capital gains tax is levied on income from the transfer of assets, even if the assets appear to have been transferred by a sales contract, and if the sales contract is invalid from the beginning or cancelled later, etc., the sales contract received by the transferor should be returned to the transferee in principle, and thus, it cannot be deemed as subject to capital gains tax, considering the transferor's income (see Supreme Court Decision 2011Du31802, Sept. 29, 2012). Therefore, in concluding a sales contract for real estate, if the transferor cancelled the sales contract or completed the registration of ownership transfer in the future, and the transferee did not perform the obligation for payment of residual land, the above sales contract becomes retroactively null and void, and thus, the transfer of assets cannot be deemed as having been deemed as having been subject to capital gains tax, and even if the transferor acquires the right to compensation for damages on the land of this case without returning the land of this case to the transferee, it cannot be deemed as having been subject to capital gains tax even if the transferor acquired the remaining assets of this case without returning the land of this case.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified.