Cho High Court Decision 2012 Deputy 3193 ( October 29, 2012)

be eligible for the special taxation of capital gains tax on the purchaser of housing unsold in lots.

Since the sales contract concluded with the previous construction company is terminated retroactively due to the cancellation of the contract due to the unpaid balance of the contractor, the sales contract concluded between the plaintiff and the construction company constitutes the first sales contract and the apartment is transferred within five years from the date of acquisition, it is subject to the special taxation of capital gains tax for the purchaser of the unsold house.

2013Guhap339 Revocation of Disposition of Imposing capital gains tax

IsaA

The director of Busan District Office

May 2, 2013

May 30, 2013

1. Each disposition of KRW 000,000 on March 1, 2012 rendered by the Defendant against the Plaintiff (Appointed Party) and the Appointed BB, respectively, shall be revoked.

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

The same is as the disposition (it appears that March 8, 2012, on March 1, 2012, the date of the disposition of imposition on the purport of the claim, as a supplement of the amendment of the purport of the claim and the cause of the claim).

1. Details of the disposition;

A. On December 4, 2009, the Plaintiff (designated parties, and hereinafter referred to as the “Plaintiff”) and the SelectionB entered into a sales contract with the CC Construction Co., Ltd. (hereinafter referred to as “CC Construction”) for the purchase price of 000m2 (127.05m2 (hereinafter referred to as “the apartment of this case”) in Busan-dong Odong-dong ODR 000,000, and the exclusive area of 127.05m2 (hereinafter referred to as “the apartment of this case”) at the time of advance payment, and paid the down payment of 00 won on the same day. On January 12, 2010, the remainder after deducting the remaining advance payment discounted amount of 00 won from the outstanding advance payment discounted amount of 00 won, and the remainder after deducting the ownership transfer registration is completed in the name of the Plaintiff and the Selection B on January 13, 2010 (hereinafter referred to as “the actual cause for the registration of ownership”).

B. On July 6, 2011, the Plaintiff and the SelectionB entered into a sales contract to sell the instant apartment for KRW 000, and the registration of ownership transfer was completed in the name of E on August 1, 201 with respect to each 1/2 portion of the apartment.

C. On August 16, 2011, the Plaintiff and SelectionB filed a preliminary return on each transfer income tax with each transfer value of KRW 000 ( KRW 000 x 1/2), and the acquisition value of KRW 000 ( KRW 000 x1/2), and necessary expenses at KRW 00, and KRW 000, and KRW 000.

On March 1, 2012, the Plaintiff and the Defendant: (a) calculated the acquisition value of the instant real estate as KRW 00 [the balance of KRW 000 (the contract deposit + the balance of KRW 000) x 1/2] to the Plaintiff and the SelectionB; (b) each of them corrected and notified KRW 000 of the transfer income tax for the year 201 (hereinafter “each of the instant dispositions”).

E. On July 9, 2012, the Plaintiff and the SelectionB filed an objection and filed an appeal with the Tax Tribunal for the revocation of each of the instant dispositions, but all of them were dismissed on October 29, 2012.

[Based on Recognition] The whole purport of the arguments, as follows: non-satched facts, Gap evidence 1 to 4, evidence 12, evidence 12, evidence 13, evidence 15, and evidence 1 to 13, and evidence 1 to 13, and evidence 1 to 13.

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

1) The Plaintiff and the SelectionB concluded an initial purchase and sale contract on the instant apartment and transferred it within five years from the date of its acquisition, and thus, the capital gains tax should be reduced or exempted pursuant to Article 98-3(1) of the Restriction of Special Taxation Act, but the Defendant’s each disposition of this case is unlawful.

2) Even if the transfer of the instant apartment does not fall under the reduction or exemption of capital gains tax under Article 98-3(1) of the Restriction of Special Taxation Act, the disposition of the instant apartment, which the Plaintiff and the SelectionB acquired each of the instant apartment at KRW 000 ( KRW 000 x 1/2) and calculated each of the instant apartment at the acquisition price, is unlawful.

B. Relevant statutes

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

C. Determination

In light of the fact that the instant sales contract constitutes reduction or exemption of capital gains tax under Article 98-3(1) of the Restriction of Special Taxation Act; Article 98-3(1) of the Enforcement Decree of the same Act; and Article 38 of the Housing Act, the sales contract between the Plaintiff and the 20G seller for the first time is not concluded until February 11, 2009; thus, the sales contract between the 10G seller and the 10G seller for the first time is not concluded for the remainder of 10 years after the date of the sales contract; and there is no evidence that the sales contract was concluded between the 10G seller and the 10G seller for the first time. According to Article 98-3(2)1 of the Enforcement Decree of the Restriction of Special Taxation Act, it is reasonable to acknowledge that the sales contract was concluded between the 10G seller and the 2G seller and the 10G seller for the first time after the date of the sales contract and the 10G buyer for the second time.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.