Cho High Court Decision 2010Da3784 (Law No. 111, 06.03)

It is recognized that the profit from resale has been realized through unregistered transfer, not brokerage commission.

In light of the fact that the pre-sale process of real estate transactions takes charge of the pre-sale process, and in light of the sale process, it seems that the pre-sale price is paid to the pre-owner, and that the profit gained from the sale is a high amount of brokerage commission, it is difficult to understand by social norms, and rather, it is reasonable to deem that the profit gained from

Article 104 of the Income Tax Act shall apply to transfer income tax rates.

2011Guhap2505 Revocation of Disposition of Imposing capital gains tax

Note AA

Head of Changwon Tax Office

December 15, 2011

February 9, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 39,556,620 against the Plaintiff on May 24, 2010 shall be revoked.

1. Details of the disposition;

A. On September 12, 1988, the ownership transfer registration was made on September 12, 198 with respect to 1/2 shares (hereinafter “the instant real estate”) out of 00-0,000 square meters of the OO-dong O-dong O-dong O-gu, Changwon-si. On May 2, 2002, the registration of ownership transfer was made in the name of KimCC on April 1, 2002. As to the instant real estate, the date of conclusion of the sales contract was March 26, 2002; the seller was LBB; the buyer was the Plaintiff, the broker, the broker, the remainder of 40,000,000 won (a contract deposit amount of KRW 5 million; KRW 4,500,000; hereinafter “the sales contract of this case”); the seller was made on March 26, 2002; and the buyer was 200,000,0000 won (hereinafter “CC”).

B. ParkB filed a transfer income tax return with the head of Si/Gun/Gu having the transfer value of the instant real estate as KRW 40 million, while it transferred the instant real estate to KimCC. Since KimCC subsequently transferred the instant real estate to the Korea Land Corporation, it reported the transfer income tax with the acquisition value of KRW 72,80,000 to the head of Si/Gun/Gu tax office, the head of Si/Gun/Gu tax office identified virtual data and notified the Defendant of the taxation data.

C. Accordingly, on May 24, 2010, the Defendant: (a) purchased the instant real estate from ParkB in KRW 45 million from the ParkB and sold the instant real estate unregistered for KRW 72.8 million to KimCC; and (b) issued a disposition imposing capital gains tax of KRW 39,556,620 on the Plaintiff in KRW 202 (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to 5, 10, 11, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The instant disposition is unlawful for the following reasons.

(1) The Plaintiff, as a real estate broker, handled the business of selling the instant real estate to KimCC upon a request from ParkB, the former owner of the instant real estate, and divided profits generated in the process into the Plaintiff, GG real estate representative EE, USD HaH, and the Plaintiff did not resell the instant real estate.

(2) Even if the Plaintiff resells the instant real estate, the instant sales contract is so-called “the so-called “contract” in which the purchase price is low, and the Plaintiff paid KRW 10 million in cash for the cancellation of the registration of provisional seizure and the payment of the cost of small and medium farming, in addition to KRW 45 million deposited in the passbook in the name of ParkB’s wife, and the actual purchase price of the instant real estate is KRW 55 million.

B. Relevant statutes

Attached sheet and conflict.

C. Determination

(1) Whether the Plaintiff transferred unregistered property or not

Article 104 (3) of the Income Tax Act provides that a person who acquired an asset as provided for in subparagraphs 1 and 2 of Article 94 (1) of the Income Tax Act shall transfer the remaining 0G sales proceeds without registering the acquisition of the asset. In light of the following circumstances, ① ParkB and KimCC shall not have any deficit in the course of the sales of the instant real estate, and ② KimCC shall have been aware of the sales proceeds of the instant real estate at KRW 70,280,000,000,000,000 won, and KRW 20,000,000,000,000 won were 0,000,000 won, and KRW 20,000,000,000,000,000 won were 0,000,000 won, 20,000,000 won.

(2) Whether the transfer value of the instant real estate was 55 million won or more

In addition to the sales contract of this case, the date of the conclusion of the sales contract of this case was 1.2.3.26, 2002. The seller was YB, Kim Jong-sik, 5 million won for the plaintiff, part payment (payment upon contract), 20 million won for the intermediate payment (payment date April 18, 2002), and 25 million won for the remainder payment (presum payment date May 3, 2002), and submitted as evidence the sales contract of this case 50 million won for the purchase and sale of real estate (Evidence 6). The plaintiff's assertion that it is difficult to recognize the cancellation of the provisional attachment agreement of this case as evidence for the reason that it is difficult to prove that the provisional attachment of this case was 50 million won for the first time upon the payment of the pre-sale contract of this case. According to Gap evidence No. 1, the plaintiff's assertion that it is difficult to recognize that the provisional attachment of this case's real estate was made as evidence for the reason that it was insufficient to prove that it was made.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.