early 2010 Heavy0630 (2010.04.08)

Since transfer income tax is recognized as being legally made in accordance with a valid sales contract, a disposition rejecting a request for correction is legitimate.

The return and payment of the capital gains tax on real estate are recognized to have been made lawfully in accordance with the effective sales contract between the plaintiff and the purchaser, and even if the remaining amount pursuant to the sales contract was not received, the transfer income tax cannot be calculated on the basis of such received amount, and thus a disposition rejecting

Article 96 of the Income Tax Act

2010Guhap2130 Revocation of Disposition rejecting a request for rectification of capital gains tax

00AA

○ Head of tax office

March 15, 2011

March 29, 2011

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's rejection disposition against the plaintiff on January 10, 2010 shall be revoked.

1. Details of the disposition;

A. On February 13, 2008, the Plaintiff entered into a contract with Park Do, Inc. to sell 550,000,000 square meters of 23,141 square meters of 20,000 square meters of 0,000 ○○○○○○-gun, Gyeonggi-do, ○○○○○, ○○○○, 56-1 forest land, 997 square meters of 56-1 forest land, and 56-12 forest land, the same Ri, which is owned by the Plaintiff (hereinafter referred to as “the land of 2 lots of this case”), and received 55,00,000 money down

B. Meanwhile, on March 22, 2008, the Plaintiff sold the instant real estate to HaB in KRW 1,800,000,000, and the Plaintiff determined the down payment to KRW 180,000,000 as the intermediate payment to KRW 400,000,000 as the intermediate payment to KRW 1,220,000,000 as the intermediate payment, and upon the payment of intermediate payment, the seller prepared a sales contract stating a special contract to transfer the instant real estate to HaB, and on May 2, 2008, the seller completed the registration of transfer of ownership with respect to the instant real estate to HaB.

C. On September 22, 2008, the Plaintiff filed a lawsuit for nullification of the contract with the Seoul Western District Court 20087) Gohap12521, and on April 24, 2009, the judgment of the above court that "it is confirmed that the above contract was null and void between the Plaintiff and its subordinateB" (hereinafter "the judgment of this case"), which became final and conclusive on June 16, 2009.

D. On June 1, 2009, the Plaintiff filed a final return on capital gains tax for 2008 with the transfer value of the instant real estate as KRW 550,000,000, and the tax amount to be paid as KRW 75,200,240, and paid capital gains tax.

E. On November 2, 2009, the Plaintiff filed a claim for correction of the transfer income tax belonging to 2008 on the ground that the sales contract between the Plaintiff and the subordinateB was invalidated. However, the Defendant rejected the claim on January 10, 2010.

F. On February 19, 2010, the Plaintiff filed an appeal against the instant disposition with the Tax Tribunal, and received a decision of dismissal on April 8, 2010, and filed the instant lawsuit.

[Ground of Recognition] A. 1 through 3, 4-1 through 3, 5-2, 1, 2-1, 2, 3-1, 2, 3-1, 2, 4-1 through 3, 5-1 through 5-3, and the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The instant disposition rejecting the Plaintiff’s request for correction was unlawful, even though the Plaintiff did not generate income from the transfer of the instant real estate as the sales contract between the Plaintiff and the sub-B was invalidated on March 22, 2008 pursuant to the instant judgment. Preliminaryly, the Plaintiff received only KRW 395,00,000 in relation to the instant real estate, and thus, the transfer income tax should be calculated on the basis thereof, and the instant disposition regarding the exceeding portion is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) In light of the overall purport of the arguments in the evidence Nos. 3 and 4-1 to 3, 5-1, 2, 3-1 to 3, 6-1, 8-1, and 2 of evidence Nos. 1, 7-1 to 4, 8-2 of evidence Nos. 3-1, 5-2 of the above evidence Nos. 3-2, and 3-2 of the above evidence, the plaintiff entered into a sales contract for the real estate of this case with ParkbB upon request of ParkB to transfer the registration for the transfer of the real estate of this case in his name. The plaintiff entered into a sales contract for the real estate of this case on March 22, 2008 under the name of the plaintiff andHaB and completed the registration for transfer of the real estate of this case under the above 3-B ownership no longer than the sale contract for the real estate of this case under the name of the plaintiff andHaB.

On the other hand, comprehensively taking account of the overall purport of the pleadings as to Gap evidence Nos. 1 through 3, Eul evidence Nos. 4-1 through 2, Eul evidence Nos. 3-1, 2, 5-1 through 3, and 7-1 through 4 of evidence Nos. 1, 3-2, 5-7, the plaintiff filed a transfer income tax report on June 1, 2009, and entered the value of the real estate in KRW 50,000,000, but did not state the name of the transferee in the report, while the sales contract of this case made between the plaintiff and Eul-B entered the purchase price in KRW 50,00,000, but the sales contract made between the plaintiff and Eul-B entered the purchase price in KRW 1,80,000,000,000, and the plaintiff can recognize the original copy of the transfer income tax as to the real estate of this case after it was confirmed that the sales contract was null and void between the plaintiff andHaB.

In full view of all the circumstances in the above facts, the return and payment of capital gains tax on the real estate of this case made on June 1, 2009 after the plaintiff received the judgment of this case as above is not related to the sales contract between the plaintiff and its sub-B, but it constitutes a legitimate report of capital gains tax as to the effective sales contract between the plaintiff and its sub-B, and thus the disposition of this case which refused the plaintiff's request for correction of capital gains tax is legitimate.

2) In addition, Article 96 of the Income Tax Act provides that the transfer value of the pertinent asset shall be based on the actual transaction value between the transferor and the transferee at the time of transfer of the relevant asset, and the fact that the Plaintiff entered into a contract to sell the instant real estate in the amount of KRW 550,00,000,000, as seen earlier, the transfer income tax shall not be calculated on the basis of the amount paid, even if the Plaintiff was unable to receive part of the remainder under the above sales contract from the ParkA. Thus, the Plaintiff’s conjunctive assertion is without merit

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.