early 2012 Heavy1734 (Law No. 112.31. 201)

It is difficult to see that a sales contract is cancelled.

The sales contract to purchase land is not rescinded and maintained without cancelling the contract, and it is reasonable to deem that the Plaintiff, after re-transfering the land to the subsequent owner, performed all by paying the purchase price for the land to the previous owner, and that the Plaintiff obtained capital gains by transferring the land from the former owner to the latter owner.

2013Gudan1366 Revocation of Disposition of Imposing capital gains tax

The AA

The director of the tax office

May 15, 2013

July 3, 2013

1. The plaintiff's claim is dismissed.

2. The plaintiff shall bear the litigation costs.

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2010 against the Plaintiff on September 10, 201 is revoked.

1. Details of the disposition;

A. The registration of ownership transfer in the name of the Plaintiff was made in sequence on June 19, 2009 with respect to the land of this case, 000-2 m2, 182 m2 (hereinafter referred to as “each of the instant land”) at the port of the wife’s MaB, which was originally owned by the OB, for the purchase and sale on June 19, 2009, and the registration of ownership transfer in the name of the smallCC on June 8, 2010 (as of May 26, 2010).

B. On September 10, 201, the Defendant decided and notified KRW 000 of the transfer income tax for the year 2010 on the ground that “the Plaintiff voluntarily reported and paid the transfer income tax related to each of the instant lands to the smallCC on the ground that “the Plaintiff acquired each of the instant lands from OB in 000 won” was transferred to the smallCC (hereinafter “instant disposition”).

C. On April 10, 2012, the Plaintiff dissatisfied with the instant disposition, filed a request for a trial with the Tax Tribunal on April 10, 2012, but the Tax Tribunal dismissed the said request on May 31, 2012.

Facts without dispute, Gap evidence 6, Gap evidence 7, Eul evidence 8, and Eul evidence 1 and 2, and Eul evidence 1.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The sales contract between the Plaintiff and OB entered into with respect to each of the instant lands was terminated on December 25, 2009 on the ground of the Plaintiff’s failure to perform the contract, and even though the Plaintiff was not earned income in relation to the transfer of each of the instant lands, the Defendant, despite the fact that the instant disposition was made on a different premise, was unlawful, and the Defendant’s disposition against the Plaintiff

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

(c) Fact of recognition;

1) On June 4, 2009, the Plaintiff: (a) purchased each of the instant lands in 000 won; and (b) concluded a sales contract with the purport that the Plaintiff shall develop each of the instant lands and sell them to another person and pay them on September 30, 2009 (hereinafter “instant sales contract”).

2) On June 19, 2009, OB had completed the registration of transfer of ownership in the name of the Plaintiff with respect to each of the instant land on June 19, 2009 without receiving the purchase amount from the Plaintiff in accordance with the instant sales contract.

3) As to each of the instant lands on July 3, 2009, the Plaintiff: (a) made a registration of the establishment of a neighboring agricultural cooperative consisting of “the maximum amount of claims 000 won; (b) the Plaintiff, the mortgagee, and the mortgagee,” and (c) lent KRW 000 to him/her on July 8, 2009.

4) On December 25, 2009, the Plaintiff drafted a written waiver to the effect that: (a) the Plaintiff could not sell each of the instant land to a third party; (b) the Plaintiff could not pay the purchase price by the agreed date under the instant sales contract; and (c) the Plaintiff would grant B a security at the Plaintiff’s expense to pay the purchase price by November 2, 2009; and (d) the Plaintiff would waive all rights to each of the instant land without any objection; and (e) compensate for damages caused by the nominal transfer relationship.

5) On May 26, 2010, the Plaintiff entered into a sales contract with the smallCC to sell each of the instant lands at KRW 000, and received all the above sales price from the smallCC on May 26, 2010 and June 4, 2010, the Plaintiff completed the registration of ownership transfer in the name of the smallCC with respect to each of the instant lands on June 8, 2010, and thereafter used KRW 00,000 from the sales price received from the smallCC to pay the remainder, and 00,000,000,000,000,000, for the purpose of paying the above loans to the Lao Agricultural Cooperative.

Facts without dispute over the basis of recognition, Gap evidence 2, Eul evidence 3-1, 2, Eul evidence 9-1, 10-2, and 11, Gap evidence 12, and Eul evidence 3 through 5, the purport of the whole pleadings.

D. Determination

1) In full view of the following circumstances that can look at the entries in Eul evidence 6 and the overall purport of the pleadings, the sales contract of this case is not rescinded and maintained without cancellation. After the Plaintiff re-transfers the land of this case to OB, it was performed by paying KRW 000 to OB as the purchase price for the contract of this case, and it is reasonable to view that the Plaintiff acquired each of the land of this case from OB in KRW 00,000, and the Plaintiff obtained capital gains by transferring it to OCC in KRW 000.

① The Plaintiff, not the right of rescission of the instant sales contract, was prepared on October 31, 2009 and December 25, 2009 to OB, and entered in each of the instant sales contract and written waivers, and it is difficult to deem that the instant sales contract was rescinded on December 25, 2009, and there is no other evidence to prove that the instant sales contract was rescinded on the grounds of the Plaintiff’s non-performance of the contract, as alleged by the Plaintiff.

② Rather, in spite of the Plaintiff’s failure to receive the sales amount by the payment deadline stipulated in the instant sales contract, OB, the right to rescission of the instant sales contract, was only urged the Plaintiff to pay the sales amount, and did not cancel the instant sales contract.

③ On June 4, 2010, the Plaintiff agreed to pay 000 won out of the above amounts to OB as the purchase price of the instant sales contract, and paid 00 won to OB, after transferring each of the instant lands to 00 won, and between OB and OB.

④ There is no specific and objective evidence that the Plaintiff transferred each of the instant land to SoCC, and then recognized that KRW 000,000, which was received and used as necessary expenses related to the transfer of each of the instant land, was disbursed.

2) Therefore, the Plaintiff’s aforementioned assertion on a different premise is without merit.

3. Conclusion

The plaintiff's claim of this case is dismissed as there is no reasonable ground.