Early High Court 2008 Mine3652 (Ob. 18, 2010)

No sales contract shall be deemed to have been lawfully rescinded.

Since the court's decision of compulsory adjustment and voluntary adjustment to receive a balance of sale, the sales contract remains valid, and it cannot be deemed that the transfer income has no possibility of realizing the transfer income due to the transfer date as of the transfer date.

2010Guhap1309 Revocation of Disposition of Imposing capital gains tax

Ansan

O Head of tax office

July 14, 2011

August 11, 2011

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 KRW 11,808,550 on August 22, 2008 against the Plaintiff on the 2005 shall be revoked.

1. Details of the disposition;

O The plaintiff, who is the husband, had an auction procedure with respect to the 00-00 square meters and 415.4 square meters and 561-22 square meters and 498.8 square meters (hereinafter referred to as "the land of this case"), which are owned by DongA, Dong-gu, Gwangju Metropolitan City (hereinafter referred to as the "her husband"), was established on September 1, 2005, and was appointed as the representative director on October 27, 2005, and the non-party company completed the registration of ownership transfer in the name of the non-party company on the same day after being awarded a successful bid for 370,100,000 won.

Of the total 5,00 shares issued by the non-party company at the time, 1,500 shares out of the 5,000 shares issued by the non-party company were owned by its children (hereinafter above 1,50 shares were referred to as "the plaintiff's shares", and 5,000 shares were referred to as "the shares of this case").

O on behalf of the Plaintiff and its children on December 2, 2005, sales of the instant land at KRW 546,460,000 (hereinafter referred to as “the instant sale”) by means of transferring 5,000 shares of the instant land to thisB on behalf of the Plaintiff and its children, and payment of KRW 259,00,000 among them is made by means of acquiring the collateral security obligation against Gwangju Agricultural Cooperative, and KRW 47,460,000 was paid as the down payment on the date of the contract, and the balance was paid in four equal installments.

The LA received down payment of KRW 47,460,00 from the BB on the same day, and before receiving the remainder payment, the LA delivered all documents necessary for the transfer of the shares of this case to the BB, and accordingly, the B transferred the trade name of the non-party company to the OO corporation on January 2006, and the 2,500 out of the shares of this case completed the transfer under the name of the other party, and the remaining 2,500 out of the shares of this case.

O) Accordingly, on August 22, 2008, the Defendant deemed the Plaintiff as KRW 111,030,000 (=370,100,000 x) and the transfer value as KRW 163,938,00 (=546,460,000 x 54600 x 5550) and issued the instant disposition imposing capital gains tax for the transfer margin belonging to the year 2005.

O The Plaintiff was dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on October 27, 2008, but the Tax Tribunal dismissed it on February 18, 2010, and the Plaintiff filed the instant lawsuit on March 22, 2010.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Eul evidence Nos. 1 through 3, and the purport of the whole theory

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff asserts that the instant disposition was unlawful since the instant sales contract was lawfully rescinded or it was impossible to recover the sales amount, and thus, the instant disposition was unlawful.

(1) The instant sales contract was duly rescinded and invalidated upon delivery to B of a copy of the complaint containing an intention of cancellation in the case, such as the return of shares, etc. filed by the Plaintiff against BB, etc., by the Gwangju District Court 2006Kahap2287, which the Plaintiff filed against B, etc.

(2) Even if the instant sales contract continues to remain effective, this case’s sales contract has been consumed in full by BB on the wind that the Plaintiff would return the tax amount of KRW 100 million on the part of the Defendant’s wrong side, and it is currently insolvent by transferring to another person all of the property in the name of the certified copy, which is a certified copy of the OCO’s shares that the principal had been the representative director, transferred to OCC. Accordingly, it was impossible to recover the sales price of this case.

(b) Fact of recognition;

(1) The proceedings of the lawsuit between the plaintiff and the Lee B

(A) The instant compulsory mediation decision, etc.

O The Plaintiff and their children filed a lawsuit seeking the return of the shares, etc. (No. 20067rhap2287) by asserting that the instant sales contract was cancelled by the delivery of a copy of the complaint against this BB, etc. on March 9, 2006, when this B did not pay the balance of the instant sales.

C. On April 6, 2006, upon the Plaintiff’s application, the registration of the provisional injunction against disposal (hereinafter “provisional injunction”) was completed for the right to claim restitution following the cancellation of the contract on the instant land, etc. as the right to be preserved.

O On February 7, 2007, AB paid 280,000,000 won to the Plaintiff and their children in installments, and at the same time, the said court rendered a compulsory adjustment decision to the effect that, in order to secure 200,000,000 won among them, the mortgagee and children of the right to collateral security regarding the land, etc. of this case shall implement the procedures for registering the establishment of the right to collateral security with the maximum debt amount of 240,00,000 won (hereinafter referred to as the “instant compulsory adjustment decision”), and the said decision was finalized at that time.

O 이 사건 토지 등에 관하여 2007. 11. 12. 근저당권자를 ▷▷농협, 채권최고액을 183,300,000원으로 하는 근저당권이 설정되었는데, 그 다음날인 2007. 11. 13. 원고의 해제신청으로 이 사건 가처분등기가 말소되었으며, 같은 달 16. 근저당권자를 원고, 채권최고액을 150,000,000원으로 하는 근저당권이 설정되었다.

(B) Voluntary conciliation, etc. of this case

O) On the other hand, the Republic of Korea: (a) regarded this B as a third debtor of the door-A for the collection of taxes in arrears against the door-A; and (b) seized the sales balance claim of this case; (c) the Plaintiff deposited 150,000,000 won in lieu of the payment of the purchase balance with the Records; (d) subsequently, the Plaintiff and the Republic of Korea made an oral agreement between the Plaintiff and the Republic of Korea to add the legitimate owner of the said amount through a subsequent lawsuit; and (e) accordingly, the BB paid 150,000,000 won in Korea on November 22, 2007 to appropriate the said amount for the delinquent tax amount of the door-A.

O and the same day Gwangju District Court 2007Gahap577 decided the compulsory adjustment decision of this case was null and void, and this BB was established between the Plaintiff and the BB that it would pay 128,000,000 won to the right of execution deposit or tax seizure in lieu of the payment to the Plaintiff and its children (hereinafter referred to as "voluntary adjustment of this case").

O) After the plaintiff and his children's objection, the creditor against BB confirmed that the plaintiff and his children were not literatureA, and on March 27, 2008, the Republic of Korea cancelled the seizure, and returned 100,000,000 won, excluding KRW 50,000,000, which the plaintiff and their children agreed to pay for unjust enrichment to the Republic of Korea, out of the seizure amount paid by the above invalid seizure.

(2) The financial status of the BB;

OB acquired ownership of 000-0 OO apartment 000 - 000 - on March 3, 2004 and lost it on December 13, 2006.

OB paid global income tax and value-added tax from July 2006 to September 2007, and on June 10, 201, securities transaction tax due to stock transfer was paid.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 3 through 12, Eul evidence No. 4, and the purport of the body before pleadings

C. Determination

(1) As to whether the instant sales contract was lawfully rescinded

In concluding a sales contract for real estate and completing the registration of ownership transfer in advance of the buyer. If the buyer cancels the sales contract by failing to perform the obligation to pay the remainder, the above sales contract is retroactively invalidated, and thus, the disposition imposing capital gains tax on the premise that the seller has income from the transfer of the seller is unlawful (see, e.g., Supreme Court Decisions 83Nu243, Mar. 12, 1985; 2001Du5972, Sept. 27, 2002). This legal principle also applies to the transfer of corporate shares which are the kind of assets.

As seen earlier, the Plaintiff consented to the compulsory adjustment decision and voluntary mediation with the purport of receiving the amount equivalent to the balance of the purchase and sale of this case from the BB. Thus, the sales contract of this case still remains valid. Thus, the Plaintiff’s assertion on the other premise is without merit.

(2) As to whether taxable income exists

(A) The criteria and time for determining whether income can be realized in the future

The Income Tax Act adopts the so-called principle of confirmation of a right to taxable income, deeming that a right that is a cause of income has been realized when there is no income in reality, and adopts the so-called principle of confirmation of a right that calculates taxable income: Provided, That even if a claim that is the cause of income has arisen, if it is objectively apparent that the claim subject to income subject to taxation becomes impossible to recover due to the debtor's bankruptcy, etc. and it becomes impossible to realize the future income in the future, income tax on economic benefits should lose its premise, and such income cannot be imposed on taxable income. However, it should be clearly stated that the taxpayer has no income subject to taxation by asserting and proving such circumstance. In such a case, whether the claim is impossible to recover shall be determined by an objective method of assessment by taking into account the debtor's asset situation and payment ability by taking into account the specific details of the transaction and the subsequent circumstances (see, e.g., Supreme Court Decision 2001Du1536, Oct. 25, 2002).

(B) Time of transfer of the Plaintiff’s shares

However, the Plaintiff delivered all the documents necessary for the transfer of the instant shares to B before receiving the payment of the remaining purchase and sale price from B. Accordingly, the transfer of the Plaintiff’s shares to 3 future holders, including the principal, etc. on or around January 2006 is as seen earlier. As such, even if the remaining purchase and sale price of the instant shares is not yet settled, the transfer time of the Plaintiff’s shares should be seen as around January 2006, when the transfer of holders, such as B, etc., completed the transfer of the said shares (see Article 98 of the Income Tax Act and Article 162(1)2 of the Enforcement Decree of the same Act).

Therefore, unless there are special circumstances, whether the claim for the purchase price of this case is impossible to be recovered should be determined based on the above transfer period rather than the present point of time.

(C) As to the impossibility of recovering the sales price claim of the instant case

In light of the following circumstances revealed by the above facts, i.e., (i) this BB owned 18-2O apartment 00,000 OE at the time of transfer of the Plaintiff’s stocks, around January 2006, and paid global income tax and value-added tax from July 2006 to September 2007; (ii) even after the Plaintiff’s assertion, this B transferred the Plaintiff’s property under the name of the principal during the process of compulsory adjustment and voluntary adjustment; (iii) the Plaintiff could not be seen as having arbitrarily cancelled the instant provisional disposition by taking account of the fact that the Plaintiff could not be seen as having been able to recover the remaining shares from the time of sale and purchase of the Plaintiff’s outstanding shares, based on the fact that the Plaintiff could not be seen as having been able to recover the outstanding shares from the Plaintiff’s transfer price to the Plaintiff’s 16th day of sale and purchase based on its assertion and the fact that the Plaintiff could not be seen as being able to recover the outstanding shares from the Plaintiff’s transfer price.

In addition, the Plaintiff received KRW 47,460,00 from B on the date of the instant sales contract, and this B took over KRW 259,00,000 for the obligation of collateral security against the Gwangju Agricultural Cooperative in the Asia. Therefore, the above KRW 306,460,00 (= + KRW 47,460,000 + KRW 259,00,000) had already been determined and realized capital gains equivalent to KRW 306,460,00.

(D) Sub-committee

Therefore, the plaintiff's assertion on the premise that the claim for the purchase price of this case is impossible to be recovered is not reasonable.

3. Conclusion

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