Suwon District Court-2015-Gu Group-855 (Law No. 21, 2015)

Since the right of indemnity cannot be acquired even if the right of indemnity is sought for cancellation of the right of collateral or the secured obligation of this case is repaid, the secured obligation amount should be included in the acquisition value

The amount of secured debt should be included in the acquisition value of land because it is impossible to obtain the right to indemnity even if it is sought for cancellation of the right to collateral security or repayment of the secured debt of this case, and it is additionally liable for the secured debt.

2015Nu5672 Revocation of disposition of imposing capital gains tax

UO

OO Head of the tax office

August 21, 2015

March 15, 2016

March 29, 2016

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition imposing capital gains tax of KRW 25,081,740 on the Plaintiff on July 2, 2014 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The Defendant’s disposition of imposition of KRW 39,122,130 for the Plaintiff on January 2, 2013 shall be revoked.

1. Details of the disposition;

The court's explanation on this part is the same as the corresponding part of the reasoning of the judgment of the court of first instance, except where the "third party" in Part 5 of the judgment of the court of second instance is "Gla" as "Gla". Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

According to the settlement agreement prepared by the Plaintiff in the course of acquiring the instant land from the competentA, the acquisition value of the instant land is KRW 63,632,465 (the Plaintiff’s claim amounting to KRW 71,500,000 and interest thereon - interest thereon) or KRW 63,00,000,000, which is the sum of the secured claim of KRW 44,000,000,000, which the Plaintiff guaranteed the instant land and the actual payment of KRW 19,000,000,000,000,000, which exceeds KRW 61,000,000,000,000, inasmuch as the transfer value of each of the instant land exceeds KRW 19,872,00,00,000

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

The following facts are not disputed between the parties, or an objection may be admitted in full view of the purport of the entire pleadings in each entry of Gap 2, 3, 5 through 11, 17, Eul 1, and 2 (including the branch numbers, if any):

1) In the process of voluntary auction on December 8, 2006, the Plaintiff acquired ownership at a successful bid for the OO-O-O-O-263 square meters (hereinafter referred to as "O-O-O land"), but there was a unregistered house on the land of O-O-O land and on the land of this case (hereinafter referred to as "the building of this case").

2) On January 23, 2007, the Plaintiff filed a lawsuit against the competent Government District Court 200OOOO, claiming that the Plaintiff was the owner of the instant building and the competent B, who was the owner of the instant building, and the competent owner of the instant building, and against the competent District Court 3OOO, seeking removal of the part on the ground of the instant building, among which the instant building was located on the OO-O land. On October 10, 2007, the said court made a decision to recommend settlement that “The competent court shall pay 61.5 million won to the Plaintiff by October 31, 2007, and the Plaintiff shall immediately receive the said money, immediately implement the procedure for ownership transfer registration for the purchase and sale of OO-O land.” The said decision became final and conclusive around that time.

3) The authorityA did not pay to the Plaintiff the amount of money in the decision on recommending the settlement, and on November 1, 2007, if not paid KRW 61.5 million in the decision on recommending the settlement, the Plaintiff prepared a letter of performance stating that the building in this case was not subject to any objection even if it was not paid by November 12, 2007, but failed to comply with this. The Plaintiff filed a lawsuit against the authorityA again against the authorityA by the Government District Court 200OOOO under the 6OOOO on November 15, 2007.

4) The Plaintiff leased KRW 44 million from KimA for the purpose of recovering construction costs, etc. upon completion of the instant building, and purchased the instant land necessary for the completion of the instant building, and completed the registration of ownership transfer under his name on December 3, 2007. On the same day, KimA completed the registration of ownership transfer on the instant land (hereinafter referred to as the “mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-backed maximum debt amounting to KRW 70 million, and hereinafter referred to as the “mortgage-mortgage-mortgage-backed debt”).

5) After transferring the instant land and building to the Plaintiff, the competentA agreed to mutually settle the instant building by means of sale and purchase, etc. after receiving completion from the Plaintiff. On December 7, 2007, the Plaintiff completed the registration of ownership transfer with respect to the instant land, and on December 21, 2007, entered into a settlement agreement (hereinafter “instant settlement agreement”) with the Plaintiff on December 21, 2007, and entered into a sales contract with the content of selling the instant building to the Plaintiff.

-Agreement on Settlement of Accounts (Evidence A6-2)

1. The details of the money that the competentA shall pay to the Plaintiff are as follows:

① Inasmuch as the amount to be paid to the Plaintiff is KRW 61,50,000 and interest for arrears of KRW 25% per annum from November 1, 2007 to the full payment date.

② The authorityA confirms that the amount to be paid to the Plaintiff is KRW 10,000,000 and interest for arrears of KRW 24% per annum from December 11, 2007 to the full payment date.

2. In order to pay the above money, A shall sell the land of this case to the Plaintiff in KRW 19,00,000.

However, the agreement of this subsection shall be repurchaseed within 10 months upon the plaintiff's choice and claim for the above purchase price. In such cases, taxes and public charges, such as expenses for the transfer of ownership following the sale and repurchase, shall be borne by the competent A.

3. The rightA transfers the instant building to the Plaintiff, and the method of settlement of the price is the method of settling claims against the Plaintiff’s rightA (the Plaintiff and the rightA entered into a separate sales contract for the transfer of housing, but the obligation relationship between the Plaintiff and the rightA regarding the payment and settlement of the purchase price shall prevail over the sales agreement).

4. Omitted.

5. The Plaintiff’s purchase and sale of the instant land and buildings transferred by the IC and the amount remaining after deducting the amount to be paid by the Plaintiff from the IC (including all the relevant procedural costs, such as relocation and litigation costs) from the IC, shall be paid to the IC. The sale price shall be determined upon consultation between the Plaintiff and the IC and if the sale price is not agreed upon or is not traded within six months after the date of this Agreement, the IC does not raise any objection even to the sale at the price determined by the Plaintiff upon request by the IC.

6. In the event that the Plaintiff is able to obtain a loan equivalent to the amount of money to be paid by the AD as security within six months after the date of this Arrangement, the said real estate shall be transferred to the AD at the same time with the receipt of the loan by the AD as the debtor. However, if the Plaintiff wishes to purchase and sell a third party more than the transfer of the AD, it shall be accepted, but if the sale is not made within two months after the date of the loan, it shall be transferred in the name of the AD.

7. The Plaintiff and competentA shall proceed with the loan procedure under paragraph (6) prior to the Plaintiff’s settlement of the amount of credit, and if the amount of loan does not reach the Plaintiff’s total amount of credit, the sale procedure under paragraph (5) shall proceed. Even if the sale procedure under paragraph (5) does not reach the Plaintiff’s settlement of credit, or if the sale procedure is not completed within June 21, 2008, the real estate under this Agreement transferred by the Plaintiff from the competentA shall be ultimately attributed to the Plaintiff and the Plaintiff’s claim against the Plaintiff is deemed to have been fully

6) The sale procedure for the instant land and buildings has not been completed until June 21, 2008. The Plaintiff was sentenced to the judgment that “The IC shall remove the portion occupied by the Plaintiff in the case of the removal, etc. of the building by 2000 U.S. District Court 2000 on June 24, 2008.” However, the Plaintiff did not remove the instant building.

7) Meanwhile, on September 26, 2008, KimA, who was not paid a loan from the IC, applied for an auction on the instant land under the instant collateral security by the District Court 200OOOO in the case, and was awarded the instant land at KRW 61 million in the said case.

D. Determination

1) Whether the plaintiff's amount of credit is the acquisition value under the settlement agreement of this case

According to the following circumstances, i.e., Article 2 of the Settlement Agreement: (a) the land of this case appears to have been transferred to the plaintiff for the purpose of collateral for the claim under Article 1 of the Settlement Agreement; (b) the transfer registration of ownership appears not to have been made for the claim under Article 1 of the Settlement Agreement; and (c) the land of this case and its building cannot be sold or offered as collateral for the repayment of the claim against the plaintiff pursuant to the Settlement Agreement; (d) the land of this case, which is the site of the building of this case, could not be sold or offered as collateral; and (d) the land of this case, which was the site of this case, was originally acquired by the 400,000 won and the interest on interest on the 400,000 won cannot be seen to have been paid separately to the plaintiff; and (e) the land of this case and its right to interest on the 40,000 won cannot be seen to have been transferred to the 60,000,000 won and the value of the land of this case are under the premise that the plaintiff and the land of this case.

2) Whether the aggregate of secured debt of the right to collateral security is acquisition value

In light of the following circumstances acknowledged as above: ① the right to collateral security agreement of 00,000 won was insufficient to sell the instant land and buildings or to obtain a loan as collateral; ② the Plaintiff, who acquired the instant land, shall have economic value, excluding the secured debt of 00,000 won; ③ the Plaintiff, at the time of purchase of the instant land for the purpose of collateral security, appears to have determined the value of the instant land, other than the secured debt of 00,000 won; ④ The right to collateral security agreement of 00,000 won was no more than the acquisition value of the instant land, under Article 2 of the Settlement Agreement, was no more than 90,000 won and no more than the acquisition value of the instant land, and thus, it would be reasonable to deem that the instant land was no more than 00,000 won, excluding the secured debt of 00,000 won.

3) Sub-decisions

Therefore, as long as the acquisition value of the instant land cannot be deemed to exist beyond the transfer value, the instant disposition based on the premise that the transfer margin exists is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance shall be revoked on the grounds of its conclusion, and the disposition of this case shall be revoked.