Ulsan District Court 2010Guhap3415 ( October 17, 2011)

Cho High Court Decision 2010 Sub-2856 ( November 29, 2010)

It is difficult to regard that an unregistered real estate has been sold.

It is reasonable to view that the seller cooperates with the seller in selling the real estate rather than purchasing the real estate from the seller and selling the real estate before the sale of the unregistered real estate in cooperation with the seller and the common interest of the seller of the transferred real estate or in combination with the sale of the real estate by marriage.

Contents are the same as attachment.

2011Nu3166 Revocation of disposition of imposing capital gains tax, etc.

KoreaA

Head of the Dogsan Tax Office

Ulsan District Court Decision 2010Guhap3415 Decided August 17, 2011

January 18, 2012

February 8, 2012

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposing KRW 866,772, and 710 on the Plaintiff on August 10, 2010 is revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On December 14, 2000, the registration of ownership transfer was completed on September 10, 200, on the 1,000 m20-00 m2 and the 4th m2094 m2 and the 4st m2 m2 in Ulsan-dong OO, Ulsan-dong, and on the 4th m2 in the ground reinforced concrete structure, the ownership transfer was completed on September 10, 201.

B. On August 10, 2010, the Defendant purchased the instant real estate from ChoB in KRW 450,000,000, without completing the registration of ownership transfer under the name of the Plaintiff, and then sold the instant real estate in KRW 97,000 to KimCC. On August 10, 2010, the Defendant issued a disposition imposing the Plaintiff KRW 866,772,710 (hereinafter “the instant disposition”).

[Ground for recognition] Unsatisfy

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff was proposed that the plaintiff would sell the real estate of this case as a broker from ChoB to another, and that the remaining amount would be brought about by the plaintiff as a brokerage fee between the plaintiff and 450 million won out of the sales amount. After mediating ChoB and KimCC, the plaintiff mediated the above real estate to sell it to KimCC at KRW 970 million, and then delivered it to ChoB in accordance with the above provision, and the remaining amount of KRW 50 million to KRW 50 million out of the sales amount. The plaintiff purchased the real estate of this case from ChoB, as argued by the defendant, and then did not transfer the real estate of this case to KimCC without registration. Accordingly, the transfer income tax of this case was imposed on the plaintiff under the premise that the transfer income tax of Article 21 subparagraph 16 of the Income Tax Act was illegal, since it was a brokerage fee for ChoB and KimCC, and the transfer income tax of this case was imposed on the plaintiff under the premise that Article 21 subparagraph 16 of the Income Tax Act was not illegal.

(b)a recognition;

1) The Plaintiff’s Chok and ChoB is the Republic of Korea in the Republic of Korea. On the other hand, the Plaintiff’s register of shareholders, FF Integrated ConstructionB Company BB in the name of the Plaintiff, CB, HanG, and Cho H(Korean Ministry of Justice). The J Industry BB in the name of the Plaintiff, CB, etc., and LL General Construction BB in the name of the Plaintiff, CB, etc., and the actual operator of the said Company appears to be II.

2) The R&B owned the instant real estate and the instant real estate and the building on the land and its ground located immediately adjacent thereto, and around December 14, 2000, the instant real estate sold to ChoB, and the said 000-0 land and the building on the land were sold to the LL General Construction Company.

3) On August 14, 2001, in the presence of the real estate agent JJ and the licensed real estate agent KimN affiliated with the K Licensed Real Estate Agent's Office located in Ulsan-gu Office of K Licensed Real Estate Agents, the seller's ChoB and the buyer's KimCC (Evidence 4) was prepared. The content of the real estate transaction contract is that ChoB shall sell the real estate of this case to the KimCC on the same day, and the contract deposit amount of KRW 100 million (50 million, the remainder of KRW 50 million, the deposit amount of KRW 50 million, the deposit amount of KRW 50 million, and the remainder of KRW 870 million, the balance of September 14, 2001, shall be KRW 870 million.

나) 그리고 위 계약과 관련하여 2001. 8. 14.자 영수증(을 9호증)과 2001. 9. 1. 자 영수증(을 15호증, 공인중개사 지JJ의 입회 아래 작성된 것으로 기재되어 있음)이 있는데, 전자는 원고가 조BB 대신 계약금 중 5,000만원을 받았다는 내용, 후자는 한 II가 조BB 대신 중도금 명목으로 2억 7,800만 원을 받았다는 내용으로 김CC의 남편 옥QQ에게 각 작성 ・ 교부해준 것이다.

4) On September 10, 2001, KimCC prepared and delivered a loan certificate (No. 7) dated March 30, 2002 with respect to KRW 50,000,000 which was not paid to the Plaintiff out of KRW 970,000,000, to the Plaintiff. On the same day, as seen earlier, the registration of ownership transfer was completed in the name of KimCC on the ground of sale as of September 4, 2001.

After that, the Plaintiff did not pay KRW 50 million on the above loan certificate, which was based on the above loan certificate, and the Plaintiff provisionally seized part of the instant real estate that had been registered for ownership transfer in the name of KimCC.

5) When the registration of ownership transfer under the name of KimCC has been completed, a certificate of approval (Evidence A 5) was submitted on September 4, 2001, which was entered into the seller ChoB and the buyer KimCC, with the registration document. The above contract is KRW 450 million.

6) On the other hand, on September 18, 2001, the ChoB made a preliminary return of KRW 20,747,467,467 upon the acquisition of the instant real estate in KRW 429,252,53, and the transfer of KRW 450,00,00,00 to the Defendant, and on November 30, 2001, paid KRW 6,824,552 in total of KRW 620,413 as well as resident tax on KRW 620,824,52. The said money is presumed to have been disbursed by FF Comprehensive Construction B or LL Comprehensive ConstructionB Company [Article 4-1 (Payment Resolution) and by a private person in column for president].

[Ground of recognition] Facts without dispute, Gap evidence 3 through 6, Eul evidence 4, Eul evidence 7 through 11, 15 through 17 (including all relevant numbers), witness B of the trial court, witness of the trial court, witness of the trial court, and the purport of the whole pleadings and arguments of the court

C. Determination

1) In light of the above legal principles, if the Plaintiff purchased the instant real estate from 0B and sold the instant real estate to 0,000 won, it is reasonable to acknowledge that the Plaintiff had no effect on the Plaintiff’s sales and purchase of the instant real estate to 00,000 won, including 0,000 won, and that the Plaintiff purchased the instant real estate from 10,000,000 won or less from 0,000,000 won for the purpose of 10,000,000 won, and 20,000,000,000 won were no more than 0,000,000 won, 20,000,000 won, and 3,000,000,00 won were no more than 0,000,000 won, 20,000 won, 20,000 won, 2,000,00 won.

3) Therefore, the disposition of this case based on the premise that the Plaintiff purchased the instant real estate from ChoB and reselled the unregistered real estate to KimCC is unlawful due to erroneous determination of facts, and the Plaintiff’s assertion is with merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and the disposition of this case is revoked, and it is so decided as per Disposition.