early 209 Heavy2140 (2010.03.09)

shall be deemed null and void even if the date of a sale contract was made retroactively to exclude land transaction permission.

Where a separate sales contract was prepared before the date of a sales contract was designated and publicly announced as a regulatory zone to exclude permission for land transaction, it is finally null and void since it falls under the scope of exclusion or evasion of permission for land transaction from the beginning.

The contents of the decision shall be the same as attached.

1. The Defendant’s disposition rejecting the request for reduction or correction of capital gains tax against the Plaintiff on January 30, 2009 is 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. ○○○○-si ○○○-5 Forest Land (hereinafter “instant land”) was subject to registration conversion on April 6, 2006 14-7, 144-8, 144-9, 144-10, 144-11, 144-12, 144-13, 1444-14, 144-14, 144-15, 144-16, 144-17, 144-18, 144-19, 144-20, 144-20, 144-20, 144-21-21, hereinafter “instant land” was designated as a land transaction contract under the National Land Planning and Utilization Act (hereinafter “Act”) on November 20, 202

B. On December 21, 2004, the Plaintiff concluded a contract to sell the instant land to △△ Construction (hereinafter “instant contract”).

C. On October 11, 2005, the Plaintiff completed the registration of transfer of equity ownership of the instant land on the grounds of the trading on September 5, 2002 in the future of △△ Construction, etc. (State) △△△, etc.

D. On December 19, 2005, the Plaintiff voluntarily reported and paid capital gains tax of KRW 1,026,447,050 following the transfer of the instant land.

E. However, on September 1, 2008, the Plaintiff filed a request for correction pursuant to Article 45-2(1) of the Framework Act on National Taxes with the purport to demand refund of KRW 333,285,205, out of the transfer income tax that was voluntarily paid by deducting the irrecoverable amount from the transfer value on the ground that the remaining amount of KRW 1,469,752,830 under the instant sales contract became impossible, and the Defendant rejected the said request for correction on January 30, 2009 (hereinafter “instant disposition”).

F. On April 30, 2009, the Plaintiff filed an appeal with the Tax Tribunal. On July 13, 2009, the date of the sales contract on the registry of the instant land stated on September 5, 2002, which was prior to the designation as the land transaction permission zone, but the actual date of the transfer is null and void due to the violation of the land transaction permission system, and accordingly, the Plaintiff filed a claim for full refund of the capital gains tax voluntarily paid on the ground that it does not constitute the transfer of assets.

G. On March 9, 2010, the Tax Tribunal filed an appeal on the grounds that the grounds for filing an application for rectification are groundless.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4, 12, Eul evidence Nos. 1 and 3 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

1) Plaintiff’s assertion

Although the date and time of the instant sales contract was actually concluded on December 21, 2004, in order to exclude the procedure for permission for a land transaction contract by the Plaintiff and (ju) △△△ Construction, the Plaintiff and the Plaintiff drafted the date and time of the instant contract retroactively on September 5, 2002, and completed the procedure for permission for a land transaction contract without going through the procedure for permission for a land transaction contract. The cause is null and void. Ultimately, the instant land transfer does not constitute the transfer of assets, and thus, the instant disposition rejecting the refund of the transfer income tax voluntarily paid by the Plaintiff is unlawful.

2) Defendant’s assertion

The copy of the register of the instant land entered the date of the instant sales contract into September 5, 2002. Therefore, the Plaintiff’s assertion that the date of the sales contract completed the registration of transfer of ownership retroactively is without merit.

B. Key statutes

It is as shown in the attached Form.

C. Determination

1) Whether the sales contract of this case is null and void

A contract for land transaction within a permitted area under the National Land Planning and Utilization Act, which is in a flexible invalidation without permission for land transaction, shall be null and void when both parties clearly indicate their intention of refusing to perform the duty of cooperation or not to file an application for permission, as well as when both parties clearly express their intention of refusing to grant permission. In cases where a person who has entered into an actual contract for sale and purchase indicates a buyer under the contract in a manner to add an unspecified person (i.e., adding an "non-party ○" to the name of the actual contractor), even though the person who actually entered into the contract had an intention of internal deliberation to add a person who contributed to some funds at the time of preparation of the contract deposit or an investor of a third party anticipated in the course of payment of intermediate payment and balance to a "non-party ○" as a co-party corresponding to the "non-party ○" at the time of concluding the contract or subsequent cancellation of the contract, if there is no other objective circumstance to clarify or confirm it from the seller's point of view, the status of the actual purchaser shall be deemed to be recognized as a seller.

In addition, where a separate sales contract was prepared before the date of a sale contract was designated and publicly announced as a regulatory zone to exclude land transaction permission, the above sale contract was not premised on obtaining land transaction permission, namely, a contract which is finally null and void since the time when the contract was concluded because it constitutes a case where it was intended to exclude or avoid land transaction permission from the beginning (see, e.g., Supreme Court Decisions 92Da44671, Nov. 23, 1993; 2009Da96328, Jun. 10, 2010). If land within a land transaction permission zone was sold in sequence from the first seller without land transaction permission without the land transaction permission, the intermediate buyer, and the last buyer again sold from the middle buyer without the land transaction permission, the parties to each sale contract are required to obtain land transaction permission as to each of the respective sales contracts. Even if there was an agreement between the said parties to directly complete a registration of ownership transfer between the first seller and the first buyer without the first buyer’s consent to enter into the sale contract and the first buyer’s agreement to be null and void.

In addition, the transaction contract within the land transaction permission area under the National Land Planning and Utilization Act shall take effect only with the permission of the competent authority, and the effect of the contract shall take effect before obtaining the permission as well as the effect of the claim is null and void. Article 94 (1) of the Income Tax Act provides that the transfer of assets in the transfer income refers to the transfer of assets at a cost, and only in the position of controlling, managing, or taking advantage of the profit by ascertaining the transfer income in an economic aspect, it shall not be determined that the transfer income is a transfer income. Thus, even without the land transaction permission, it cannot be deemed that the sale price was first paid in advance and kept by the seller, and the seller constitutes the transfer of assets subject to the transfer income or there is any income from the transfer of assets (see, e.g., Supreme Court Decision 98Du5811, Jun. 13, 20

In full view of the aforementioned evidence, Gap evidence, evidence Nos. 5 through 8, 10, 13 through 41, and Eul evidence No. 2 (including each number), the following facts and circumstances can be acknowledged.

① The Plaintiff, the representative of △△△△△ Construction, the Plaintiff purchased the instant land from the Plaintiff, without registering only the down payment and intermediate payment in the name of △△△△△△△△△△, was trying to acquire gains from resale by dividing it into a third party. ② On February 2005 to March 2, 200, the Plaintiff revised the instant sales contract from 204, 12, and 21 to 12, “A” from 200. ③ The △△△△ Construction, the instant land divided the instant land into various shares, and then sold the instant land to △△△△△, △△△△△, DaD, DaD, MaF, Hak, Hak, Hak, Hak, and Hak, the Seoul High Court, 200, 200, 205, 10, 25, 20, 5, 20, 20, 5, 20, 2, 3.

According to the above facts and circumstances, the Plaintiff’s sales contract for the instant land and the registration of transfer of ownership thereon are in violation of the land transaction permission system, which is a mandatory law, and thus is null and void. Therefore, the Defendant’s disposition rejecting the Plaintiff’s request for reduction or exemption of capital gains tax is unlawful.

3. Conclusion

Thus, the plaintiff's claim of this case is justified and accepted.