The trial examiner 2013 middle 2360 [Judgment]

Since the transaction of this case is a unregistered resale, the defendant's disposition made under such premise is legitimate.

Although the Plaintiffs initially purchased and sold the instant land, they asserted that the contract was terminated after the conclusion, based on various circumstances, etc., the Plaintiffs are deemed to have sold the instant land without being registered.

Article 88 of the Income Tax Act

2013Gudan5351 Revocation of Disposition of Imposing capital gains tax

ChoA et al.

○ Head of tax office

2014.07.11

2014.12

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 79,360,400, each of the capital gains tax belonging to the year 2010 against the Plaintiffs on April 4, 2013 (hereinafter “instant disposition”) shall be revoked.

1. Details of the disposition;

A. On December 28, 2010, Korea-B and Chungcheongnam-C transferred 1/2 shares of each of the 1/2 shares of 0,000 square meters of 0,000 square meters of 0,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00

B. In the course of the investigation into Korea-B, etc., the Defendant acquired the instant land from Korea-B, etc. in KRW 205,00,000 from Korea-B, etc., and sold the instant land to Korea-B, without registering it, and deemed that it sold the instant land to Korea-B, etc. without registering it.

C. The Plaintiffs appealed and filed an appeal with the Tax Tribunal, but received a decision of dismissal on November 11, 2013.

Facts that there is no dispute over recognition, Gap's evidence Nos. 1, 2, 4, 5, 16, Eul's evidence Nos. 1 and 2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's principal

1) The sales contract concluded with the Plaintiffs and HanB was terminated by agreement as follows.

A) On November 201, 2010, 196, 200 won and 37,000,000 won and 3.3,000,000 won and 3.3,000,000 won and 37,000,000 won and 37,000,000 won and 3,000,000 won and 3,000,000 won and 3,000,000 won and 3,000,000 won and 2,000,000 won and 3,000,00 won and 3,00,00 won and 3,00,00 won and 2,00 won and 2,00,00 won and 3,0

B) On December 2010, the Plaintiffs received a proposal from BB in order to make half of the profit margins under the sales contract with MaD and concluded to cancel the said sales contract. On December 16, 2010, the registration of the right to claim the transfer of all shares was cancelled.

C) If Korea-B lends KRW 30,000,000 to Plaintiff ChoA, it was proposed that Plaintiff KimE will receive and settle any balance arising from a sales contract with Plaintiff ChoA, and that Plaintiff KimE received upon Plaintiff ChoA’s request on December 20, 2010, Plaintiff KimE transferred KRW 30,000,000 to Korea-B on December 20, 2010.

D) On December 28, 2010, Plaintiff Cho Jae-A paid KRW 70,00,000 for the penalty for breach of the above sales contract at KRW 26,00,000, at the time of receiving the remainder of the above sales contract from Jung-F's real estate brokerage office, which arranged for a sales contract with DaD, from DaD, and paid KRW 20,000,000 for the same day by account transfer.

E) On December 28, 2010, the Plaintiff Cho Jae-A paid KRW 15,000,000 to the Gangwon-gu. This is the payment of KRW 15,000,00 to the Gangwon-do Governor, ○○○-dong 2306-4, 304.9 square meter, which, in Siri-si, was entrusted with a construction work for the Plaintiff Cho Jae-A, paid KRW 1,00,000 to the Gangwon-do Governor as a brokerage fee under a sales contract entered into with the Jung-do.

F) On December 28, 2010, Plaintiff Cho Jong-A paid KRW 134,30,000,000, including the sum of KRW 102,500,000 investment and penalty of KRW 35,000,000, to Plaintiff Jeong-I-I-I-I-D-I-D-I-D-I-D-I-D-I-D-I-D-I-D-I-D-I

2) Since the Plaintiffs received 15,00,000 won of down payment, 15,00,000 won of July 15, 2010, 5,000,00 won of intermediate payment on July 27, 2010, 13,000 won of intermediate payment on August 20, 2010, 45,000 won of intermediate payment on August 30, 2010, 1,100, 23,900, 200, 200, 200, 000, 000, 000, 000 won + 00, 000, 00, 000 won of account transfer, 00, 000, 000, 000, 200, 000, 000, 300, 000, 300, 200.

3) The sales contract and the above sales contract are different from the subject matter of the contract (the area of the subject matter of the sales contract entered into with the Periodical is equal to 60 square meters).

4) The Plaintiffs did not participate in the sales contract entered into with DaD, and the sales price pursuant to the above sales contract was paid to DaB, and the amount delivered to the Plaintiffs out of 403,950,000 won was merely KRW 323,00,000.

5) In light of the above circumstances, the Defendant’s disposition of this case, which was based on the premise that the above sales contract was not terminated even though the contract was terminated by agreement as above, was unlawful.

(b) Fact of recognition;

The following facts may be acknowledged either in dispute between the parties or in full view of each of the statements in Gap evidence Nos. 1, 2, 4 through 10, 16, Eul evidence Nos. 1 through 4 (including each number), the witnessB, Maddddi, and Gangwon F's testimony (excluding each of the statements that are not believed in the following) and the whole purport of the pleadings, and any of the statements in Gap evidence Nos. 12, 13, and 14, the witness B, Madddddi, and Gangwon F's testimony is not believed, and there is no other counter-proof.

1) On July 13, 2010, the Plaintiffs entered into a sales contract with Korea-B on the instant land as follows.

- Sales amount of KRW 205,00,000

-the down payment of KRW 200,000 on the date of the contract, the intermediate payment of KRW 70,000 on August 16, 2010; the remaining intermediate payment of KRW 85,00,000 on September 30, 2010; and the remainder of KRW 30,000 on December 20, 2010;

- The access road section shall be divided from 717 o-dong to 717 o-dong.

- The seller will cooperate with documents necessary for provisional registration at the same time as the contract is made.

2) On August 19, 2010, Plaintiff KimE obtained a land transaction permit for the instant land from Silung-si, and on August 26, 2010, Plaintiff KimE completed the registration of the entire right to claim the transfer of shares based on the purchase and sale reservation made on August 20, 2010.

3) The Plaintiffs paid KRW 15,00,000 for down payment on July 15, 2010, and KRW 5,000 for intermediate payment on July 27, 2010, respectively, and paid KRW 13,000 for intermediate payment on August 20, 2010, KRW 45,000 for intermediate payment on August 30, 2010, and KRW 23,900 for intermediate payment on August 30, 2010, and KRW 20,000 for total payment on October 1, 15, 2010, and KRW 20,000 for total payment on KRW 40,000,000, and KRW 40,000 for each of them on October 25, 2010.

4) On the other hand, on November 26, 2010, Korea-B drafted a sales contract with regard to the instant land as follows.

- Sales amount of KRW 403,950,000

-The remainder of KRW 366,950,000 on the date of the contract, and the remainder of KRW 366,950,000 on December 30, 2010;

to pay.

- The size of the portion of the road shall be 120 square meters.

- Provisional registration section is cancelled by the seller by the date of the balance payment.

- HaF, the seller’s broker, HaH

5) On November 26, 2010, HanB delivered KRW 37,000,000 to Plaintiff KimE.

6) On December 16, 2010, Plaintiff Kim E-E completed the registration of cancellation of the provisional registration of the right to claim a transfer of the entire share of the instant land. On December 20, 2010, Plaintiff Kim E-E transferred KRW 30,000,000 to BB on December 20, 2010.

7) On December 28, 2010, HanB received, respectively, the balance set forth in the above sales contract, at face value of KRW 266,00,000,000 and KRW 100,950,000, respectively, and issued to the Plaintiff Cho Jae on the same day a check for the amount of KRW 266,00,000 at face value. Meanwhile, Plaintiff Cho Jae paid KRW 15,00,000 to the Gangwon on December 28, 2010.

C. Determination

In light of the above facts and the following circumstances, the plaintiffs were determined to have remaining after five months from the date of conclusion of the contract when entering into the sales contract with HanB. It is doubtful that the plaintiffs would have paid the remainder of the purchase price to HanB after the conclusion of the contract without any special reasons (which is alleged to have been the same as the payment date for the remainder of the purchase contract for the plaintiff's non-resale). The plaintiffs' provisional registration after the conclusion of the sales contract with HanB is used as a means of non-resale, and there is a difference between the plaintiffs and HanB and the sales contract between HanB and the remaining amount of the purchase price for the remainder of the purchase price for the plaintiff's non-resale, but it is difficult to claim that the plaintiffs paid the remainder of the purchase price for the remainder of the purchase price for the plaintiff's 00,000,000 won under the sales contract with HanB, which is the date of the remainder of the purchase and sale contract with HanB.

3. Conclusion

Therefore, the plaintiffs' claim is dismissed as it is without merit, and it is so decided as per Disposition.