It can not be viewed that there is a defect or defect in the disposition of imposition, so that it can not be deemed that it is void as a matter of course.

Comprehensively taking account of the fact that a sales contract was cancelled in light of the fact that the real estate was sold and the sales price was fully paid, the fact that it is difficult to conclude that the sales contract was cancelled in light of the process of lawsuit and the content of mediation with the purchaser, and that there was no procedure for remedy such as filing a request for correction, etc., a defect in imposition of capital gains tax

2013 Gaba262 Baba

Note AAAAA

Korea

April 19, 2013

June 21, 2013

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 00 won with 5% interest per annum from November 27, 2012 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

The following facts may be acknowledged in full view of the whole purport of the arguments in each entry in Gap and 4, and evidence 8 through 10, under no dispute between the parties, or in full view of the purport of the whole arguments:

A. The registration of the establishment of the ownership in the name of the plaintiff, the maximum debt amount of 000 won on March 13, 2002, and the debtor, the plaintiff and the right to collateral security (hereinafter referred to as "D bank") were completed with respect to the OOOO-dong 00 BB apartment 000 (hereinafter referred to as "the apartment of this case") in Incheon City OOO-dong OO-dong 00 B apartment 00 (hereinafter referred to as "the apartment of this case").

B. On October 10, 2003, the lease deposit was reduced to KRW 000, when the Plaintiff leased the apartment of this case to the nextF, the son of the E, with the lease deposit of KRW 000.

C. On July 5, 2005, the Plaintiff: (a) sold the instant apartment at KRW 000; (b) sold the instant apartment at KRW 000; and (c) sold at KRW 000 among them, the Plaintiff acquired the secured debt of the right to collateral security in the name of DF under the name of DF; and (c) appropriated the remainder of KRW 00 in the lease deposit to be returned to the Plaintiff, in lieu of each payment; and (d) agreed to pay the remainder of the lease deposit to the Plaintiff by October 15, 2005.

D. The registration of ownership transfer was completed on July 7, 2005 with respect to the instant apartment in accordance with the above agreement.

E. After that, while receiving a loan of KRW 000 from the KoreaGGG bank, the CarE completed on September 27, 2005 the registration of the establishment of the mortgage over the instant real estate with respect to the instant real estate, and on September 28, 2005, the registration of the cancellation of the registration of the establishment of the neighboring mortgage over the DG bank was completed on September 28, 2005 by repaying the secured debt of the DG bank with the repayment of KRW 00,000.

F. The Plaintiff filed a lawsuit against the ET in order to have a dispute over the apartment of this case between the CE and the Plaintiff, as the Incheon District Court 2005Kahap17125, which sought implementation of the procedure for the registration of cancellation of ownership transfer registration in the name of the said CE, but on August 17, 2006, the said court received KRW 000 from the Plaintiff on December 1, 2007, and subsequently received the payment of KRW 000 from the Plaintiff on July 7, 2005.

G. The judgment of the court below was appealed (Seoul High Court Decision 2006Na84203), and the conciliation was concluded to the effect that on July 9, 2007 between the plaintiff and the plaintiff and the plaintiff on July 30, 2007, the plaintiff and the CEF paid KRW 000 to the plaintiff by November 30, 2007, and at the same time the plaintiff completed the registration of ownership transfer in the name of the plaintiff for the apartment of this case.

H. Meanwhile, as the Plaintiff did not report and pay the transfer income tax on the instant apartment, the head of the Young-dong Tax Office imposed a disposition of KRW 000 on September 1, 2010 on the gains from the transfer of the instant apartment and KRW 000,000, additional tax of KRW 000, and additional tax of KRW 000,000 on the gains from the transfer of the instant apartment due to the said sale between the Plaintiff and the Plaintiff EE (hereinafter “instant disposition of imposition of transfer income tax”).

I. The plaintiff filed a lawsuit against the plaintiff on August 10, 201 with the Incheon District Court 2017dohap9227, and the plaintiff applied for compulsory auction as the Incheon District Court 201Ma72082 with respect to the apartment of this case, "the plaintiff, from the above court on August 10, 2011, accepted the application procedure for the registration of ownership transfer due to the adjustment of July 9, 2007 with respect to the real estate of this case from the E and the EF, and at the same time, received the apartment of this case from the E and the MF to pay 000 won to the E and the MF, and after completing the procedure for the registration of ownership transfer under the name of the plaintiff on the apartment of this case.

(j) The Defendant participated on the date of distribution ( November 27, 2012) of the above auction procedure, and received dividends of KRW 000,000, based on the disposition of imposition of the capital gains tax of this case.

2. The plaintiff's assertion

The instant disposition of imposition of capital gains tax was made on September 1, 2010 after the cancellation of the sales contract between the Plaintiff and the EE, and it is apparent that the instant disposition was imposed even though the cause of taxation has already ceased to exist, and there is a serious defect in the said disposition. Therefore, the said disposition is null and void as a matter of course. Therefore, the Defendant must return 00 won distributed to the Plaintiff in accordance with the disposition of imposition of capital gains tax in question.

3. Determination

If a sales contract for real estate has been terminated by agreement between the seller and the buyer, it cannot be deemed that there was transfer of assets, which are tax requirements for capital gains tax (Supreme Court Decision 90Nu1991 Decided July 13, 199). On the other hand, in order to make tax payment or tax erroneous or erroneous, it should be null and void because there are no substantial or procedural legal grounds or apparent defects in taxation, and if the defects in taxation are too small to the extent that it can be cancelled, it cannot be deemed that the payment of taxes is unjust unless it is cancelled by itself or by appeal procedure (Supreme Court Decision 94Da2800 Decided November 11, 1994). It is clear that the Plaintiff’s initial tax base for the sale of real estate was invalid, and that there is no other reason to believe that there is no other tax base for the sale of the apartment or apartment, and that there is no other tax base for the sale of the real estate.

4. Conclusion

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