Cho High Court Decision 2010Du3566 (Law No. 08, 2011)

The disposition imposing capital gains tax is legitimate because the unregistered real estate has not been sold.

It is reasonable to see that real estate has been transferred gains on transfer by transferring the unregistered real estate, and it is difficult to recognize that the sales contract has been rescinded by the former owner and the sales contract has been rescinded.

201-gu 22047 Revocation of Disposition of Imposing capital gains tax

Park XX

head of Sung Dong Tax Office

April 27, 2012

June 1, 2012

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 capital gains tax of KRW 000 against the Plaintiff on August 12, 2010 is revoked.

1. Details of the disposition;

On August 16, 2005, the Defendant: (a) acquired the land for factories other than 000-0, and 2,312.5 square meters in its own name, and did not register the real estate in its own name; (b) on December 27, 2005, the Plaintiff was deemed to have transferred the land price of KRW 00,027,80 (including additional tax) to the Plaintiff on August 1, 2010, and the instant disposition was issued against the Plaintiff on August 1, 2005, which decided and notified the transfer income tax of KRW 207,027,80 (including additional tax) for the land for factories other than 14,825 square meters and the building of KRW 2,312.5 square meters (hereinafter “instant real estate”).

[Ground of recognition] Private theory without dispute, entry B in the evidence No. 1, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff concluded a sales contract on the instant real estate with the OraA and paid KRW 000,00,000, which is part of the sales price. However, the Plaintiff rescinded the sales contract as it did not properly implement the terms and conditions of the contract, and returned or received KRW 000 and KRW 000,000 as the sales price already paid was returned or received. Therefore, the instant disposition that imposed capital gains tax on the instant real estate by deeming that it was unregistered

B. Determination

In full view of the following circumstances: (a) there is no dispute between the parties; (b) evidence Nos. 1, 2, and 15; and (c) evidence Nos. 3 and 4 (including each of the above numbers); and (c) evidence Nos. 3 and 4 (including each of the above numbers); and (d) evidence Nos. Austria’s testimony; (b) witness KimCC; and (c) evidence Nos. 1 or 6, it is difficult to deem that there was an agreement between the Plaintiff and Austria on the rescission of the sales contract and the compensation for damages; and (c) it is reasonable to deem that the Plaintiff acquired 00 won transfer margin from transfer of the instant real estate from doorB and 1, after the purchase of the instant real estate from Austria, the Plaintiff

① On June 16, 2005, the Plaintiff entered into a sales contract on the instant real estate and paid KRW 000,000, the Plaintiff: (a) on December 13, 2005, concluded a sales contract with the Plaintiff on the instant real estate; (b) on December 13, 2005, EE, a transferee-B and one other agent, entered into a sales contract with respect to the instant real estate; (c) received KRW 000,000,000, which is the total amount of actual payment, from E; and (d) delivered the documents necessary to cancel provisional registration to E (or KRW 00,000,00,000, which is equivalent to the balance of sales, which was not received from the Plaintiff).

② The Plaintiff paid KRW 000 to purchase the instant real property from the OrA, but it concluded a contract for the purchase of the instant real property by the doorB and one other, and there is room to view that the ownership of the instant real property was 00 won in the process of exceeding the doorB and one other from the doorB.

③ The above KRW 000 is the full amount equivalent to the difference between KRW 000 and KRW 000 when the Plaintiff purchases the instant real estate from the OrA, and KRW 1,000 when the Plaintiff purchases the instant real estate.

④ It appears that the agreement on the cancellation of a sales contract and the agreement on compensation for damages between the Plaintiff and the OA appears that there is no stipulation on the rescission of a sales contract and the agreement on compensation for damages (Article 8-1 and 2 of the Evidence A are receipts prepared in the name of the Plaintiff, and that they can be prepared voluntarily by the Plaintiff alone, and cannot be viewed as an agreement on the cancellation of a sales contract and the agreement on

⑤ Considering the following facts: (a) the Plaintiff’s non-performance of the right of retention on the part of the Plaintiff’s sales contract for the extension of a factory within the instant real estate; (b) the Plaintiff’s non-performance of the right of retention on the ground that the non-performance of the right of retention on the part of the Plaintiff’s non-performance of the right of retention on the ground that the non-performance of the right of retention on the non-performance of the right of retention on the non-performance of the pertinent real estate was 00,000 won in total, and the machinery installed in the instant factory was 00,000 won in damages incurred by the Plaintiff’s non-performance of the right of retention on the non-performance of the right of retention on the non-performance of the right of retention on the non-performance of the right of retention on the non-performance of the right of retention on the non-performance of the right of retention on the non-performance of the right of retention on the non-performance of the right of retention on the non-performance of the rights of the Plaintiff’s witness.

6. DoD, which arranged the sale and purchase of the instant real estate for the Plaintiff, appears to have received a request from the KimCC to request the purchaser of the instant real estate in physical color. In view of the fact that the KimCC was in a business relationship with the Plaintiff as seen earlier, the person who colored the purchaser of the instant real estate is more likely to have been the Plaintiff, other than the OrA (the witness KimCC testified that it was requested by the OrA for physical color of the purchaser, but it is difficult to believe that the testimony was made on the ground as seen earlier).

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.