National Tax Service Review and Transfer 2011-0016 (Law No. 29, 2011)

any other income held by the original sales contract due to the cancellation or termination of the contract;

According to the agreement, it is stipulated that the amount is separate from the purchase price of land under the agreement, and the amount held by the transferor due to the cancellation or termination of the initial purchase and sale contract for the entire land, and the disposition based on the premise that the transfer of land constitutes other income and thus constitutes the transfer price of land is illegal.

Article 96 of the Income Tax Act

2011-gu 18178 Revocation of Disposition of Imposing Capital Gains Tax

XX

The director of the tax office.

September 12, 2012

September 26, 2012

1. The Defendant’s imposition of capital gains tax of KRW 000 (including additional tax of KRW 000) on the Plaintiff on June 10, 2010 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of disposition;

A. The Plaintiff entered into a sales contract to sell a total of 29,157 square meters of 00 square meters of 0,174 square meters of 0,174 square meters of 0,174 square meters of 0,000 m20,000 for 200 won of 23, 2005 and 0-1,983 square meters of 0,000 square meters of 00,000 won of 23, 2005 and 000 won of part payments of 1,983 square meters of 0,000.

B. After the Plaintiff received the above KRW 000, the Plaintiff donated 1/3 shares of the entire land to the siblings on August 22, 2007 in accordance with the court ruling on the lawsuit filed by EA et al. for the return of legal reserve of inheritance filed by the non-party et al., and on July 25, 2007, the remainder of 19,438 square meters (the land amounting to 2/3 shares of the total land; hereinafter referred to as "land subject to dispute") were to be separately received when concluding a sales contract for selling 00 won to the non-party company, and on September 28, 2007, after receiving KRW 00 from the non-party company to transfer the registration of ownership transfer on the issue of land, the transfer income tax was paid by reporting and paying the transfer income tax to the non-party company with the transfer value of the land as KRW 000.

C. The Defendant calculated transfer margin by deeming the above KRW 000 as a part of the purchase price of the land at issue and added it to the transfer value, and determined and notified the transfer income tax of KRW 000 (including additional tax) on June 10, 2010.

D. The Plaintiff filed an objection but dismissed the request for review, and thereafter, the Plaintiff filed an appeal with the Tax Tribunal, and the Tax Tribunal revoked the additional tax of KRW 000 on January 14, 201, thereby reducing the transfer income tax amount of the instant disposition to KRW 000.

(e) If the transfer value of the pertinent land is deducted by KRW 000, and the penalty tax is calculated upon the decision of the Tax Tribunal, the transfer income tax amount to be imposed is KRW 000 (including additional tax 000).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

“The portion of the capital gains tax (including additional tax 000 won) calculated by adding KRW 000 from the instant disposition to the transfer value, should be revoked on the ground that the Plaintiff returned KRW 000,000, which was obligated to return to the non-party company, in the absence of dispute over the obligation to return KRW 000,000 as part of the purchase price of the entire land.”

(b) Relevant statutes: To be listed in attached Form;

(c) Fact of recognition;

(1) On June 23, 2005, the Plaintiff concluded a sales contract to sell the entire land to the non-party company (representative director BB) with the following content, and received 000 won down payment on the day.

O Purchase price of KRW 000 (Contract: KRW 000 at the time of a contract, KRW 000 at the time of the first installment: immediately after obtaining permission for a factory; KRW 000 at the time of the second intermediate payment; KRW 000 within 15 days from the date of payment of the first intermediate payment; and KRW 000 on April 30, 2007)

O Terms and Conditions of Transaction (the plaintiff shall deliver a written consent to the use of the entire land immediately after receiving the down payment from the non-party company. The main sentence of Article 4(1))

C. The cancellation of a sales contract (Article 5(2)) (the Plaintiff may not cancel the contract in the event that the company acquires the permission of a factory without default (Article 5(2)), and the Plaintiff may cancel the sales contract in the event that the company does not obtain the permission of a factory on the entire land, and the Plaintiff shall refund the down payment KRW 000 to the non-party company (Article 5(3

O Liability for Non-performance (the party who has breached the contract shall pay 000 won equivalent to the down payment as compensation for damages arising from the non-performance of the contract, Article 6(2))

(2) The non-party company applied for a new construction of 7 units of land on the whole land and did not obtain the permission from the competent authority. On July 1, 2005, the non-party company entered into a contract for the transfer and acquisition of the right of the purchaser of the entire land under the same conditions as the above contract for the transfer and acquisition to the non-party 2 and the non-party 6 individuals, who are real investors, and agreed to the above transfer and acquisition, and prepared the written consent for each land use to the non-party 2 and the non-party 6.

(3) On August 20, 2005, EB entered into a civil engineering work contract with respect to the entire land. On September 20, 2005, EB et al., and EB et al., obtained permission for mountainous district conversion and approval for factory construction from the competent authority. On October 5, 2005, EB paid the Plaintiff KRW 00 of the first intermediate payment in the name of the non-party company.

(4) However, around October 2005, when the Plaintiff’s punishment filed a lawsuit against the Plaintiff for the return of legal reserve of inheritance and received the decision of provisional disposition on the entire land, the Nonparty Company suspended the said civil engineering work, and the Nonparty Company paid KRW 000,000, which is part of the second intermediate payment, to the Plaintiff on July 19, 2006.

(5) After that, around August 2007, at the end of the lawsuit seeking the return of legal reserve of inheritance, 1/3 shares of the total land was transferred to the Plaintiff siblings. On July 25, 2007, the Plaintiff and Nonparty Company agreed on the issue of land (2/3 shares of the total land) as follows (hereinafter “instant agreement”).

O The non-party company shall pay KRW 000 to the purchase price at the same time with the transfer of the land at issue from the plaintiff (the non-party company shall be separately paid KRW 00,00 which is already paid by the non-party company, and the non-party company shall not claim

The land transaction permission for the entire land shall be responsible for the non-party company, and if the non-party company fails to obtain the land transaction permission or to pay the above 000 won in full, the non-party company shall waive the existing payment of 00 won, and shall not claim the return to the plaintiff or institute a lawsuit (Paragraph 3)

The original sales contract between the two parties shall be amended to the extent agreed above (Paragraph 5).

(6) The Plaintiff received KRW 000 from the non-party company on September 28, 2007 in accordance with the instant agreement and paid the transfer income tax on the Plaintiff’s shares at KRW 000 after completing the registration of ownership transfer in the future on the key land.

(7) 그런데 소외 회사는 2008. 1.경 및 4.경 원고에게 당초 매매계약 대금의 일부로 지급한 0000원을 반환해 줄 것을 요구했고, 원고는 당초에는 이 사건 합의약정서 제1항을 들어 반환해 줄 수 없다고 다퉜다. 그런데 원고는 실제 000원에 대한 반환의무가 있는지에 관해 변호사, 세무사 등에게 자문을 요청한 결과, 소외 회사가 공장설립허가 등을 받을 수 없어 실제 투자자인 배BB 외 6인에게 매수인의 권리를 원고의 동의 아래 포괄적으로 양도 ・ 양수했고 그 후 배BB 외 6인이 토목공사를 진행해 건축허가를 받은 상태임에도 불구하고 원고와 소외 회사만이 당사자가 돼서 한 이 사건 합의약정은 배BB 외 6인에게 효력이 없고, 양수인이자 건축허가권자인 배BB 외 6인 사이의 권리관계를 정리해야 할 필요가 있다는 자문을 얻자, 배BB 외 6인과 사이에 금원 반환 및 권리관계 정리 문제를 위해 논의하던 중 소외 회사는 부도가 났다.

(8) As such, the Plaintiff entered into a service agreement with the tax accountant who was in conflict with a large number of interests and who did not have any money to return the party, that is, the Plaintiff’s smooth agreement between the Nonparty Company and the Nonparty Company, the purchaser of the building permit, and the Plaintiff, the seller, with no charge of providing services. The money to be returned was first paid out of the largestCC’s funds, but the Plaintiff paid 200 million won for the national tax refund that the Plaintiff would be charged to the Plaintiff (around July 27, 2009, the highestCC entered into the contract in the name of Ed, an employee, and was written as the observer, and a regular service agreement was written as of July 27, 2009, at the time of the actual completion of the service duty).

(9) Accordingly, the largestCC, on behalf of the Plaintiff, agreed to pay 00 won out of 00 won to Nonparty Company and Eddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd,

(10) In accordance with the above agreement, the largestCC paid 200 million won to the EE and ChoF, each of which is the actual investors on behalf of the Plaintiff, and 000 won for design cost of 00 billion won to the design businessman and the construction businessman, and paid 000 won to the non-party company (ND) (ND) (ND). Thereafter, the Plaintiff received 00 won for the national tax refund refunded by the Plaintiff on behalf of the Plaintiff and the total amount of 000 won for service cost of 00 won, each of which was paid by the Plaintiff.

[Reasons for Recognition] A, Gap's evidence Nos. 3 through 13, 17 through 2, 24, Eul's evidence Nos. 6 through 8 (including each number), the purport of the whole testimony and arguments by the witness bestCC

D. Determination

As seen above, 1) The agreement between the plaintiff and the non-party 1 states that even under the agreement of this case between the plaintiff and the non-party 1, 00 won received from the non-party 1 is separate from the purchase price of the land at issue; 2) after the agreement of this case was concluded, the ownership transfer registration was completed on September 28, 2007, which was about two months after the conclusion of the agreement of this case; 3) after January 2008, the plaintiff and the non-party company were obliged to return KRW 00 to the plaintiff and the non-party company. Since the agreement of this case was reached only between the plaintiff and the non-party 1, it is difficult to adjust the legal relationship between the plaintiff and the non-party 6, separately from the non-party 1 company, and it is difficult to view the plaintiff's maximum 00 won of the purchase price of the land at the expense of the plaintiff and the non-party 1, the non-party 2, the non-party 6, and the remaining 0000 won of the construction permit.

Therefore, the disposition of this case on the premise that the above 000 won constitutes the price for the transfer of the pertinent land. Since the plaintiff asserts that 000 won was returned to the non-party company, it is unlawful that 000 won was deducted from the price for the transfer of the pertinent land as requested by the plaintiff, and where the penalty tax is calculated according to the decision of the Tax Tribunal (including additional tax 000 won), the above amount among the disposition of this case should be revoked.

3. Conclusion

Therefore, the plaintiff's claim is justified and accepted.