Suwon District Court 2008Gudan2365 (No. 16, 2011)

National Tax Service Review and Transfer 2007-0167 (No. 18, 2008)

It is legitimate that capital gains tax was imposed according to the ratio of distribution of profits and losses on the purchase price of a cooperative property.

It is reasonable to view that the purpose of the joint project was changed to the resale of land in the newly constructed building sale business in light of the fact that it is difficult to view the partnership relationship as terminated solely on the ground that there was no feasibility of the project promoted, and rather, it is reasonable to view that the purpose of the joint project was changed to the resale of land.

2011Nu35837 Revocation of Disposition of Imposing capital gains tax

- Appellants

HongA

Head of Sungnam Tax Office

Suwon District Court Decision 2008Gudan2365 Decided September 16, 201

March 7, 2012

April 4, 2012

1. The plaintiff and the defendant's appeal are all dismissed.

2. The costs of appeal shall be borne by each party.

1. Purport of claim

The Defendant’s disposition of imposing capital gains tax of KRW 000 for the year 2002 against the Plaintiff on December 6, 2006 shall be revoked.

2. Purport of appeal

The part against the plaintiff among the judgment of the court of first instance is revoked. The defendant against the plaintiff on December 6, 2006

The portion exceeding KRW 00 of the imposition of capital gains tax of KRW 000 for the year 2002 shall be revoked.

Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim as to that part is dismissed.

1. cite the judgment of the first instance;

The reasons why this Court is used for this case are as follows. The reasons for the judgment of the first instance shall be as follows: Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

1) The actual acquisitor and transferor of each of the instant lands are BB Development Co., Ltd. (hereinafter referred to as “BB Development”) established by the Plaintiff, etc. according to a joint agreement, and the transfer difference is attributed to BB Development.

As follows, "the plaintiff is illegal" that will be 7th to 4th 5th 6th :

The Plaintiff has the right to receive KRW 0 million from the KoreaCC in accordance with the above agreement, but does not have the right to receive an additional distribution of profit. It is unlawful to impose capital gains tax on the portion exceeding KRW 000 of the transfer difference actually acquired by the Plaintiff in the instant disposition.

The following is added to the 6th below the 5th below (the trade name at the time of acquisition and transfer of each land of this case was 'D industrial development', and the representative director was 'E').

O Until the 10th day after the 10th day below, the term "no such grounds shall exist" from the 111th day:

The same kind of relationship is high.

In light of the aforementioned circumstances, it is difficult to view that the Plaintiff, etc., at the time of signing a contract on the resale of each of the instant land at the time, did not receive all the price, and the Plaintiff and Red HH, which were entirely responsible for resale of each of the instant land, was required to undertake a promise to pay resale profits from HanCC or the non-party company; it appears that the Plaintiff would have received KRW 000 regarding the resale profits of each of the instant land in addition to KRW 00,00, which the Plaintiff agreed to receive from HanCC in cash storage certificate; and that the Plaintiff filed a complaint on the suspicion that he embezzled the resale profits, which the Plaintiff is obligated to pay to CC, with the Plaintiff, on April 30, 2002, on the premise that the Plaintiff had the right to receive additional resale profits from the resale; or that the Plaintiff had withdrawn from the business relationship under the business agreement.

O up to the 5th anniversary of the 5th anniversary of the 12th anniversary of the following:

Even though Korea-CC is insolvent, as alleged by the Plaintiff, the Defendant, even though it was insolvent, imposed on the Plaintiff the gains accruing from the resale of each of the instant land and the receipt of the sales amount from BB development, and is not imposed on the Plaintiff’s right to claim distribution of profits against Korea-CC. The issue of whether Korea-CC can receive a distribution of profits from Korea-CCC as it is insolvent, and whether the Plaintiff can receive a distribution of profits from the remaining distribution ratio of profits and losses is irrelevant to the instant disposition.

O The following shall be added at the end of 14th:

(1) The Defendant asserts as follows. Of the disposition of this case, the additional tax is imposed on the amount equivalent to the financial interest that the taxpayer has failed to pay by the statutory deadline, and thus, it is unreasonable to expect the taxpayer to fulfill his/her duty. The additional tax is not subject to consideration. The additional tax is not imposed on the ground that the obligor has received financial benefits for the unpaid amount by the due date when inducing the obligor to make payment in good faith and securing the obligor to fulfill his/her duty of payment. However, even in the case of the additional tax for unfaithful payment, if there is a justifiable reason that the taxpayer is not aware of his/her duty, and it is unreasonable to expect the obligor to pay the unpaid amount by the due date, the additional tax is not imposed on the Plaintiff.

2. Determination as to the assertion added in the trial

A. The plaintiff's assertion

Around January 2002, the Plaintiff et al. confirmed that building permission for at least 10 stories was impossible on each of the instant lands, and agreed to waive the joint project by deeming that there was no feasibility on the construction and sale of a new apartment complex/office building/office building project anticipated under the initial joint project agreement. Accordingly, the association relationship between the Plaintiff et al. was terminated on the ground that it was impossible to achieve the objective of joint project, and the association relationship between the Plaintiff et al. and the Plaintiff et al. remains for the remaining distribution of residual property and is dissolved without undergoing a separate liquidation procedure. The instant disposition based on the premise that the partnership relationship between

B. Determination

Around January 2002, the Plaintiff et al. determined that there was no possibility of a cooperative relationship between the Plaintiff et al. and the Plaintiff et al. with respect to the construction and sale of an apartment complex/office construction/office building construction/office building construction/office building construction/office building construction/office construction/office construction/office construction/office construction/office construction/office construction/office construction/office construction which they promoted on their own land. Rather, it is difficult to view that a cooperative relationship between the Plaintiff et al. ends because the Plaintiff et al. reselled each of the land of this case and distributed profits after deducting expenses from the profits, and that the KoreaCCC was responsible for the resale of each of the land of this case and distributed profits from resale to the Plaintiff and RedH. In light of the fact that the purpose of joint business was changed to the resale of each of the land of this case.

3. Conclusion

All Defendant appeals are dismissed.