Even if the transfer tax return was revoked after the public sale of real estate by a delinquent taxpayer, the difference between the real estate price and the transfer income tax is not unjust gains.

Where a public auction procedure for real estate owned by a delinquent taxpayer is completed due to a non-payment after filing a report on capital gains tax, even if the sales contract is rescinded after the date, the difference between the market price and the capital gains tax of the building

Article 741 of the Civil Act: Contents of Unjust Enrichment

2018 Ghana 5246111

The AA

Korea

May 21, 2019

July 23, 2019

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The defendant shall pay to the plaintiff 144,856,680 won with 15% interest per annum from the delivery date of a copy of the complaint of this case to the day of full payment.

1. Basic facts

A. On January 16, 2009, the Plaintiff entered into a contract to sell ○○○○○-ri 00-0 and three parcels of land to 2,060,000 won (hereinafter “instant contract”) with ○○○-si ○○○○, ○○-si, ○○○○, and reported capital gains tax on May 29, 2009.

B. Since then, as the Plaintiff did not pay capital gains tax, a public auction (hereinafter “public auction of this case”) was conducted on ○○○○○○○-dong 000 ○○○○-dong 000 ○○○○○-dong 000 dong hereinafter “instant building”). On December 16, 2010, a distribution statement was prepared to distribute KRW 335,143,320 to the ○○○ Tax Office, and the said dividend was appropriated for capital gains tax in arrears.

C. Meanwhile, the Plaintiff filed a lawsuit of unjust enrichment with the Seoul ○ District Court 000Kadan000000 on the ground that the intermediate payment under the instant sales contract was unpaid and the sales contract was rescinded. On May 29, 2015, the said court rendered a favorable judgment against the Plaintiff, and the said judgment became final and conclusive.

D. On September 25, 2015, the Plaintiff filed an application for rectification against the ○○○ Tax Office’s revocation of the transfer income tax return, but rejected the application for rectification on January 14, 2016.

E. On February 8, 2018, the Plaintiff filed a request for review of the disposition of refusal with the Board of Audit and Inspection, and the Board of Audit and Inspection rendered a decision that "the Board of Audit and Inspection shall revoke the disposition of refusal of a request for correction of capital gains tax against the Plaintiff on January 14, 2016."

F. Since then, the ○○ Tax Office returned to the Plaintiff the full amount of the capital gains tax on the instant sales contract.

[Ground of recognition] Facts without dispute, entry of Gap 1 to 6 evidence, purport of the whole pleadings

2. The plaintiff's assertion and judgment

The Plaintiff asserted that the Plaintiff is obligated to return KRW 14,856,680, which is the difference of KRW 335,143,320, the Plaintiff returned from the market price of the instant building at KRW 480,00,00 as of September 2018, since the Plaintiff’s report of capital gains tax was revoked in accordance with the decision of the Board of Audit and Inspection as above. However, even if the Plaintiff’s report of capital gains tax was revoked on the grounds of the cancellation of the instant sales contract after the process of public sale, it cannot be said that there was any error of law in the procedure of public sale, and there was no materials to deem that the Defendant’s assertion was unjust. Therefore, the Plaintiff’s above assertion

3. Conclusion

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