Cho High Court 201 Jeon 3283 (27 April 2012)

It is recognized that the purchase of a right of sale and the unregistered pre-sale is recognized.

In addition to preparing a sales contract with a seller of a right to sell and preparing a notarial deed of a money loan contract, however, the notarial deed appears to have been prepared to guarantee the seller's obligation under the circumstances in which the resale of a right to sell is prohibited at the time, and it is recognized by itself in civil litigation instituted against the seller, etc., so the disposition that the sale

2012Gudan1223 Revocation of taxation

Park AA

The director of the tax office

May 3, 2013

May 31, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 000 on the Plaintiff, and the imposition of KRW 000 on the transfer income tax of KRW 2006 on July 1, 201 (this tax) and the imposition of KRW 000 on the transfer income tax of KRW 2006 on January 9, 201 shall be revoked.

1. Details of the disposition;

A. On July 9, 2003, KimB reported and paid KRW 000 of the capital gains tax on June 15, 2006, on the fact that it was sold in lots at KRW 000 from the OO Construction Co., Ltd. for KRW 00 (hereinafter “the apartment of this case”).

B. On July 11, 2003, the defendant acquired the right to acquire the apartment of this case from KimB-ro that purchased the apartment of this case (hereinafter referred to as the "right to sell the apartment of this case"), and paid 000 won for the remainder of the sale price after paying 000 won, and on June 9, 2006, imposed 00 won for capital gains tax for the year 2006.

C. The Defendant issued ex officio revocation of KRW 00 of the imposition of capital gains tax in the above disposition, and imposed KRW 000 of the penalty tax on January 9, 2013 (this subparagraph, and on July 1, 2011, the remaining part after the ex officio revocation of the imposition of capital gains tax, and the imposition of penalty tax on January 9, 2003, hereinafter referred to as the “instant disposition”).

[Ground of Recognition] The facts without dispute, Gap 1, 4, and 5, Eul 1, and Eul 12-3, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On April 30, 2003, the Plaintiff lent KRW 000 to DoD, and loans KRW 000 on July 9, 2003 to KimB, which was introduced from DoD, and then made a notarial deed of a monetary loan agreement on KRW 80,000,000, and KRW 800 to secure the above loan claims against DoD and KimB as the debtor in order to secure the above loan claims against DoD and KimB, and when KimB fails to pay the above principal and interest on the sales right of this case, the sales contract of the sales right of this case was prepared with the intention to secure the above sales right of this case, and in fact, the sales contract of the sales right of this case was not reselled by KimB, and the disposition of this case on a different premise is unlawful.

B. Determination

In full view of the following circumstances that are recognized by adding the whole purport of the pleadings to the testimony of each of the following items, Gap 2, Eul 7, Eul 7, Eul 9, Eul 4 through 8, and 10, and Eul 11, and witnessD, O, and KimB, the plaintiff purchased the right to sell this case from KimB, and the plaintiff has sold the right to sell this case again to ChoB, and the plaintiff's assertion contrary thereto is insufficient to support it, and there is no other evidence to support it, and the plaintiff's above assertion is not accepted.

1) On July 11, 2003, the plaintiff and KimB made a sales contract for the right of sale in this case to sell KRW 000, while the plaintiff prepared a notarial deed for a money loan contract with the purport that on July 11, 2003, the plaintiff made a loan to KimB at an annual interest rate of KRW 000,000, and on January 11, 2004, the plaintiff made a notarial deed for a money loan contract with the purport that the plaintiff made a loan to KimB on July 11, 2004, and the proviso of the above sales contract for the right of sale in this case cannot be used for purposes other than the purpose of transfer of ownership for the apartment of this case. In light of the above proviso and the above proviso, there is insufficient evidence to recognize that the plaintiff lent KRW 00 to Kang and there is no reason for BB to pay up to the borrowed loan debt of KangD, it is difficult to view that the above notarial deed was prepared to secure the plaintiff's obligation of sale in this case.

2) The plaintiff and KimB made up a sales contract of the above right to sell the apartment of this case, while the plaintiff and KimB made it possible to transfer the ownership of the apartment of this case on the same day separately from the above contract, and the KimB prepared a letter of performance to promise that they will not make a separate monetary claim regardless of market price fluctuation, and carry out the transfer procedure of ownership transfer to the plaintiff or the plaintiff designated by the plaintiff, and that KimB would not raise any objection since KimB transferred the apartment of this case to the plaintiff," and that "the plaintiff sells the apartment of this case and waives all the ownership and rights." The above documents are considered to have been prepared in addition to securing the plaintiff and KimB's fulfillment of the obligations of KimB while selling the right to sell the apartment of this case.

3) On July 3, 2006, KimB received a written statement stating that "the presumption of tax on 00 million won out of the apartment purchase price of this case is responsible for the Plaintiff," which was written out by the plaintiff, after receiving all of the sales price from the ChoCC that finally purchased the apartment purchase right of this case, and after deducting all of the sales price from the intermediate loan, the remainder, acquisition tax, and other various expenses." This is considered to have been written on the premise that "the presumption of tax on 000 won out of the sales price of the apartment of this case is responsible for the Plaintiff." This is to prepare for the subsequent imposition of capital gains tax on 00 won in excess of the actual sales price of the apartment of this case to KimB, and it is naturally established on the premise that the plaintiff, who actually sold the apartment of this case as the purchaser of the apartment of this case, bears the burden of resale profits by selling it.

4) In 2009, the Plaintiff filed a civil suit seeking restitution of unjust enrichment against DoD and KimB by asserting that, in the process of acquiring the right to sell the instant apartment in the process of acquiring the right to sell the instant apartment from DaB by introducing DoD in 2009, the Plaintiff deducted 00 won unfairly in settling the purchase price received from DaB, and thus, it shall be refunded, and that, after the Plaintiff paid the school site charges imposed on the instant apartment in the name of KimB, the amount of KRW 1,579,00 among them was refunded in the name of DoB, and thus the above refund should be refunded in the name of DoD and KimB. (Seoul District Court Decision 2009Da56741 and 2009DaDa153377). In addition, the Plaintiff did not accept the Plaintiff’s claim for restitution of unjust enrichment from DoD and KimB, and the Plaintiff did not return the purchase right to sell the instant apartment from DoD and KimB, and that the Plaintiff’s claim was not refunded.

3. Conclusion

The plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.