because it constitutes a transfer of real property, not a right to acquire real property, and constitutes an unregistered pre-sale sale.

As long as the Plaintiff continued to be the buyer, this constitutes a transfer of real estate, not a transfer of the right to acquire real estate, but a transfer of real estate, and the Plaintiff’s registration of acquisition was made immediately without completing the registration of transfer of ownership under the name of the Plaintiff, even though it was possible for KimCC to register the acquisition by fully paying the balance to AB on behalf of the Plaintiff. Therefore, this constitutes unregistered resale.

2013 old-gu 425 Capital Gains Tax Imposition Disposition

IsaA

Head of Busan District Tax Office

November 15, 2013

December 6, 2013

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of the capital gains tax for the year 2003 against the Plaintiff on April 2, 2012 is revoked.

1. Details of the disposition;

A. OO-dong 290 square meters, 623 square meters prior to the same 290-4 square meters, 290-5 square meters prior to the same 290-5 square meters, 491 square meters prior to the same 290-6 square meters, and 159 square meters prior to the same 290-7 square meters (hereinafter referred to as "the land in this case") owned by AB. The registration of ownership was completed on June 1, 2003 under the name of KimCC on June 1, 2003.

B. After investigating KimCC in relation to the transfer of the instant land, the head of Suwon Tax Office notified the Defendant of the taxation data that the Plaintiff sold the instant land without registration. Accordingly, the Defendant purchased the instant land from AB to OOB and sold it to OCC unregistered to the KimCC, and on April 2, 2012, the Plaintiff imposed and notified the Plaintiff of the transfer income tax for the transfer income tax of 2003.

C. Accordingly, the Plaintiff filed an objection on June 29, 2012, and the Defendant issued a decision of correction to reduce the amount of capital gains tax from the said capital gains tax on July 18, 2012 by changing the Plaintiff’s capital gains from transfer from the original OOO to the amount of OOO, and the Defendant issued a decision of correction to reduce the amount of OOO (hereinafter “instant disposition”).

D. On November 12, 2012, the Plaintiff filed an appeal with the Tax Tribunal on the instant disposition, but was dismissed on December 31, 2012.

[Recognition] Facts without dispute, Gap 3, 6 through 10, Eul 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff did not transfer the instant land to KimCC, but transferred the right to acquire the instant land. However, the instant disposition that calculated capital gains tax by applying the heavy taxation rate is unlawful, deeming that the Plaintiff acquired the instant land and sold it unregistered.

2) The instant land was originally purchased from AB by AB to purchase AB, and paid the down payment OOOE to AB, and the Plaintiff paid OOOE to AB and acquired the buyer status. After which the Plaintiff again decided to sell the instant land to GCC and received the down payment OOOE again, but the Plaintiff returned the down payment to AB due to the shortage of OOE members among the remainder of OOE members to be paid by KimCC, and thus, the Plaintiff paid the remainder OOE after returning the down payment OOEE. In a civil lawsuit to pay the remainder OEE to the KimCC. Accordingly, the Plaintiff received the remainder OOE under the Reconciliation’s settlement recommendation decision in the said lawsuit. Ultimately, the transfer margin that the Plaintiff acquired from the transfer of the instant land was unlawful under the premise that the Plaintiff returned the down payment to GCC OEEE -OE which was paid to GOEEE -OOE again under the premise that the remainder OE is the remainder OE which was paid to the Plaintiff.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) AD and EE entered into a sales contract with AB on January 2003 to purchase the instant land owned by AB and paid the down payment OE to AB’s agent.

2) On April 2003, the Plaintiff and the KG entered into a sales contract with ED and EE with the intent to succeed to the buyer status of the said sales contract, and paid ED and EE a down payment plus a down payment OO premium to E and E, and entered into a sales contract with EB to pay the remainder OO by May 10, 2003.

3) After that, when entering into a contract to sell the instant land to KimCC on June 3, 2003 under the intermediation of ChoH, the Plaintiff and the RedGG entered into a contract to sell the instant land to KimCC, the sales amount shall be divided into KRW OO, intermediate payments OOO, and remainder OOO. The part payments OCC agreed that KimCC received a loan from a financial institution as collateral of the instant land and directly pays the down payment OOOO on behalf of the Plaintiff to the insideF on behalf of the Plaintiff. Accordingly, the Plaintiff received the down payment OO on the day of the contract from KimCC.

4) On June 16, 2003, KimCC acquired all documents necessary for the establishment of a right to collateral security and the transfer of ownership on the instant land from the HF, and subsequently received loans from the II Agricultural Cooperative on June 17, 2003 from OOCO as collateral for the instant land.

5) Around June 17, 2003, the KimCC paid the Plaintiff a down payment after submitting various expenses, such as taxes, from the OOwon that the FF, the Plaintiff, and the KGG et al. borrowed as above at the same place, and the remaining OOwon paid the Plaintiff a down payment. On the same day, the Plaintiff received the registration of ownership transfer in its own name on the instant land.

6) After that, among the Plaintiff’s down payment and the remainder OCC’s down payment from the Plaintiff and the KGG, the KimCC agreed to sell the instant land again and make profits therefrom. However, after that, KimCC requested payment of the said OCC’s loan to the Plaintiff, the Plaintiff as the creditor, who was required to pay the said OCC’s profit at all while selling the instant land.

7) Based on the above loan certificate, the Plaintiff filed a civil lawsuit seeking the payment of OOO and damages for delay against KimCC (Seoul District Court Seosan Branch 2003Gahap1044, Seosan Branch 2004) and was rendered a favorable judgment on May 13, 2004, and the conciliation was concluded on August 17, 2005 from the appellate court (Seoul High Court 2004Na5363, Daejeon High Court 2004Na5363), and the main contents are as follows.

“The Defendant shall pay OOOG to the Plaintiff. On the premise that the Defendant was transferred the shares of the Plaintiff of the GGG in accordance with the Dong business agreement between the Plaintiff and the KGG regarding the sale and purchase of the instant land, the said amount is calculated by taking account of the Defendant’s shares to the Plaintiff. As such, in the future, the GG cannot claim against the Plaintiff any money pertaining to the sale and purchase of the instant land, and if the KGG claimed that the amount pertaining to the sale and purchase of the instant land was claimed to the Plaintiff, all of its liabilities are the Defendant.”

8) The KimCC paid OOO and damages for delay to the Plaintiff based on the above conciliation.

[Ground of recognition] The entry of Gap 1, 2, Eul 3 through 6 (including each number), the witness's testimony and the purport of the whole pleadings

D. Determination

1) As to the plaintiff's first argument

Article 94 (1) of the former Income Tax Act (amended by Act No. 7006 of Dec. 30, 2003; hereinafter the same) provides that "transfer income shall be the income falling under any of the following subparagraphs generated during the pertinent year," and subparagraph 1 provides that "income generated from the transfer of land or building" and "income generated from the transfer of right to acquire real estate" under subparagraph 2 (a) shall be the income subject to taxation. Meanwhile, Article 104 (1) 3 of the former Income Tax Act, which sets a transfer income tax rate of 60/10, applies to unregistered transferred assets, while Article 104 (1) 3 of the former Income Tax Act provides that "the unregistered transferred assets under Article 94 (1) 1 and 2 of the former Income Tax Act shall be transferred without the registration of the acquisition of the assets."

However, even if a purchaser who entered into a real estate sales contract transfers his/her rights and duties or a purchaser’s status to a third party and withdraws from the sales contract, it is merely a transfer of the right to acquire real estate, and the registration of acquisition is not possible in principle unless there are special circumstances, such as a special agreement to transfer the registration of ownership transfer prior to the remainder of payment between the parties to the sale and purchase, etc. Therefore, even if such transfer is made, the heavy taxation rate on unregistered transferred assets under Article 104(1)3 of the former Income Tax Act cannot be applied (see, e.g., Supreme Court Decision 2010Du23408, Sept. 27, 2012). However, even if the purchaser who entered into a real estate sales contract fails to liquidate the price, it is decided to acquire and transfer the real estate under the name of the purchaser if the purchaser entered into a sales contract again with a third party while maintaining the status of the purchaser, and thus, it is possible for the purchaser to register the ownership transfer to the third party without completing the registration of ownership transfer.

In this case, as revealed in the above facts, since the plaintiff entered into a sales contract for the land of this case with the KimCC even though the plaintiff continued to maintain the purchaser's status under the sales contract with the GapB, this constitutes a transfer of real estate, not a transfer of the right to acquire real estate, as long as the plaintiff continued to acquire the real estate, and the plaintiff as the plaintiff completed the registration of transfer of ownership to KimCC immediately without completing the registration of transfer of ownership under the plaintiff's name even though it was possible for KimCC to complete the balance with the plaintiff's agent, even though it was possible for KimCC to complete the registration of transfer of ownership. Thus, the heavy taxation rate on the unregistered transferred assets under Article 104 (1) 3 of the former Income Tax Act should be applied. Therefore, the disposition of this case is legitimate, and the plaintiff's assertion that asserted this is groundless.

2) As to the second argument by the Plaintiff

If evidence Nos. 4-3 and 5-2 of evidence Nos. 4-3 and 5-2 of evidence Nos. 5 and testimony of YG added the purport of the entire pleadings, the plaintiff and YG entered into a business agreement with the Plaintiff to purchase the instant land unregistered and make profits from the transfer of it into an agreement, and paid OOOOO won, adding OOOOOOO won, to E.S. and among these, the plaintiff paid OOOOOO won to E.S. ( even if OOOO is paid to E.S. as the plaintiff's assertion, according to the witness testimony of E.G., it is recognized that the amount actually borne by the plaintiff out of the amount paid to E.S. side is an OOO, and this conclusion does not affect the conclusion because it is recognized that the evidence submitted by the plaintiff is insufficient to acknowledge that the plaintiff paid it to E.O., and there is no other evidence to acknowledge that the plaintiff paid it to E.O.

In addition, as seen in the above facts, the Plaintiff returned the down payment amount from KimCC, and thereafter received the OOOOOO won under the pretext of the return of the said down payment and remainder, etc. through the lawsuit. Since the above OOO was gained as a result of settling all the accounts in relation to the relationship with the KGG, it is reasonable to view that the transfer margin that the Plaintiff acquired in relation to the transfer of the instant land is the remainder after subtracting the OOO won borne by the Plaintiff from the down payment paid to ED from the KCC. Thus, the Defendant erred by calculating the Plaintiff’s transfer margin as the OOO, unless the amount of transfer income tax imposed and collected by the Defendant (OOOO won) does not exceed the amount of legitimate tax (see, e.g., Supreme Court Decisions 200Nu3680, Sep. 28, 1993; 200Du130638, Feb. 16, 2005).

Therefore, the plaintiff's assertion that the transfer margin of the land of this case is an OOO won is without merit.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.