Cho High Court Decision 201Do2205 (Law No. 11, 2011)

It is difficult to regard the cancellation of the sales contract as being unregistered resale.

In order to purchase land from the former owner and to pay the down payment and the intermediate payment to a third party, it is difficult to recognize that the original owner was transferred to a third party due to the cancellation of the sales contract in light of the fact that only the initial sales contract was paid to the original owner, even though it was transferred at a higher price than the initial sales contract.

2011Gudan27905 Revocation of Disposition of Imposing capital gains tax

AAA

Head of Geumcheon Tax Office

April 10, 2012

April 24, 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 000 for the year 2004 against the Plaintiff on May 1, 201 shall be revoked.

1. Details of the disposition;

A. On May 1, 201, the Defendant decided and notified the Plaintiff on May 1, 201, KRW 000 of the transfer income tax attributed to the Plaintiff in 2004 for the reasons as set forth in the following sub-paragraph (b) (hereinafter “instant disposition”).

(b) Grounds for disposition;

(1) On August 15, 2003, the Plaintiff acquired 400-0 m20,066 m2 (e.g., “instant land”) from Sii-si KimE at KRW 000,000.

(2) On February 5, 2004, the Plaintiff: (a) on February 5, 2004, sold the instant land to the WesternF for non-registration of KRW 000.

[Based on Recognition] Any entry in Gap's 1, 2, and Eul's 1 to 4 (including virtual numbers) without dispute

2. Whether the disposition is light; and

A. The plaintiff's assertion

The Plaintiff concluded a sales contract to purchase the instant land, and paid KRW 000 with the purchase price, but it was inevitable to cancel the said sales contract under the understanding of Kim E-E because it was impossible to register the ownership transfer because it did not obtain the qualification certificate for acquisition of farmland, and was returned 00 won for the already paid down payment and intermediate payment, and did not resell the instant land. Therefore, the instant disposition otherwise reported is unlawful.

(b) Fact of recognition;

(1) On June 16, 2003, the Plaintiff purchased the instant land from the KimE, and the down payment amount of KRW 000 was concluded on the contract date, the intermediate payment of KRW 000 on July 10, 2003, and the remainder of KRW 000 on August 14, 2003, and the remainder of KRW 00 was to succeed to the agricultural loan by the buyer (Plaintiff) (hereinafter “the instant sales contract”).

(2) The brokerage of the instant sales contract was HH’s assistant. HuG decided to sell the instant land again to a third party upon the Plaintiff’s request by Article II, who is the Plaintiff’s husband. On February 5, 2004, the instant land was transferred to FF in KRW 000, and the ownership transfer registration was made from Kim E-E to F.

(3) Meanwhile, the Plaintiff paid 000 won in total to KimE as the down payment and intermediate payment of the instant land. HuG transferred the instant land to 000 won upon the Plaintiff’s husband’s request by Article II, who is the Plaintiff’s husband, and thereafter, paid to HuE the balance equivalent to the instant sales contract (excluding 000 won paid by the Plaintiff from KRW 000 and the remainder excluding the amount that the buyer agreed to succeed from KRW 00).

[Reasons for Recognition] The above evidence, each of the evidence of Nos. 5 through 8 (including a serial number), and the purport of the whole pleadings

C. Determination

According to the above facts, while the Plaintiff purchased the instant land from KimE and paid the down payment and intermediate payment, it is insufficient to recognize that the Plaintiff transferred the instant land to the third party after the termination of the instant sales contract with the Plaintiff’s request, and there is no other evidence to acknowledge otherwise, in full view of the following: (a) while the Plaintiff purchased the instant land from KimE and paid the down payment and the intermediate payment, HuG sold the instant land to FF at a price higher than the initial purchase price; (b) although the instant land was transferred to FF at a price higher than the initial purchase price, HuG sold the instant land to the third party upon the Plaintiff’s request by the Plaintiff; and (c) there is no other evidence to acknowledge otherwise.

D. Sub-committee

Therefore, it is difficult to see that the instant sales contract was rescinded, and it is reasonable to see that the Plaintiff sold the instant sales contract. Therefore, the instant disposition that reported as such is lawful.

3. Conclusion

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