early trial 2017west0683, 2017.17

Whether the retroactive effect of cancellation is recognized in cases where ownership is returned to the termination of the agreement on the sales contract of another house after imposition of capital gains tax.

After the imposition of capital gains tax, the termination of the agreement on the sales contract of another house after the imposition of capital gains tax does not fall under the grounds for subsequent correction because the exercise of the right of rescission or the unavoidable reasons, and thus the arbitrary termination of the agreement is not recognized as the retroactive effect of

Article 89 of the Income Tax Act

2017Guhap62785 Revocation of Disposition of Imposing capital gains tax

○ Kim

○ Head of tax office

November 21, 2017

December 22, 2016

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The disposition of imposition of capital gains tax of KRW 523,05,493 and penalty tax of KRW 122,653,622, which the Defendant rendered to the Plaintiff on November 1, 2016, shall be revoked.

1. Details of the disposition;

A. On May 19, 2015, the Plaintiff acquired on March 18, 1985, transferred the transaction value of KRW 2.1 billion to the Gangnam-gu Seoul Metropolitan Government ○○○○○ apartment, 433 ○○○○○○○○○ apartment (hereinafter “the instant first house”) on May 19, 2015, and reported and paid KRW 155(1) and 154(11) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 27829, Feb. 3, 2017) by deeming that the Plaintiff fell under the requirements for non-taxation of high-priced houses.

B. On February 6, 2015, the Plaintiff acquired ○○○○○○○○○○○○ apartment, 119 Dong 2103 (hereinafter “the instant second house”) from the Plaintiff’s spouse Kim Il-young and 1/2 shares in common. On February 13, 2015, the Plaintiff acquired the instant third house by acquiring ○○○○○○○○○○○ apartment, ○○○○○○○○○○○○○, ○○○○, ○○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○, ○

C. As of May 19, 2015, the Defendant: (a) deemed that the Plaintiff fell under three houses for one household as of May 19, 2015, which were the date of the instant first house transfer; (b) was not subject to the provision on non-taxation of two houses for one household temporarily transferring the instant first house; and (c) deemed that the market price was less than 2.5 billion won for the instant house to the leap○○○○ in a special relationship; (d) on November 1, 2016, the Defendant issued a revised and notified the Plaintiff of KRW 645,709,115 (including additional tax for negligent return, KRW 50,628,882, and additional tax for unfaithful payment, KRW 72,024,740 (hereinafter referred to as the “instant taxation”).

D. On November 28, 2016, the Plaintiff and the Plaintiff: (a) rescinded the sales contract of the instant housing △△△△ and the instant housing 2; and (b) revoked the registration of transfer of ownership in the Plaintiff’s name on December 13, 2016 due to the cancellation of the agreement.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 4, Eul evidence Nos. 1 to 5 and 8, the whole pleadings

purport of this chapter

2. Related statutes;

It is as shown in the attached Table related statutes.

3. Whether the instant taxation disposition is legitimate

A. The plaintiff's assertion

As a result of the cancellation of the instant agreement, the ownership of the instant second house was reverted to Kim △△△△ because the validity of the sales contract of the instant second house retroactively ceased to exist, and thus, the Plaintiff’s household owned only the instant first and third houses as of May 19, 2015, which was the date of the transfer of the instant first house, and met the requirements for non-taxation of high-priced houses as two houses for one household temporarily. Accordingly, the instant taxation disposition ought to be revoked illegally.

B. Determination

The issue of whether the transferred house constitutes one house for one household (second house for one household) ought to be determined as at the time of transfer of the house. As of May 19, 2015, the date of the instant first house transfer, the Plaintiff owned the instant house No. 1, 2, and 3 as at the time of the instant transfer. The Plaintiff transferred the instant house No. 1, and established a capital gains tax liability after the instant taxation was made, and the instant agreement was rescinded regarding the instant second house after the instant taxation was made. Article 45-2(2)5 of the Framework Act on National Taxes and Article 25-2 subparag. 2 of the Enforcement Decree of the same Act stipulate that “where the contract related to the effect of the transaction or act, etc., which is the basis for calculating the tax base and tax amount, is rescinded or cancelled by the exercise of the right of rescission or inevitable reasons after the formation of the relevant contract, and thus, the Plaintiff’s assertion that the instant house was not subject to provisional cancellation due to the Plaintiff’s exercise of the right of cancellation of tax base and tax amount, and thus does not constitute retroactive transfer of the instant house.

4. Conclusion

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