Seocho 2010west 1101 (Law No. 26, 2010)

Since the real estate sales contract cannot be deemed to have been cancelled, the disposition imposing capital gains tax is legitimate.

In light of the fact that most of the real estate purchase price is paid, and the interest on collateral loans is paid to residents after the completion of the registration of ownership transfer, etc., the disposition imposing capital gains tax is legitimate since the real estate sale contract cannot be deemed to have been cancelled.

2010Gudan1750 Revocation of Disposition of Imposing real estate transfer income tax

Gyeong Kim

O Head of tax office

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 3,384,880 against the Plaintiff on January 11, 2010 is revoked.

1. Details of the disposition;

A. On November 9, 2007, the Plaintiff transferred to the largestB, CC EE Ri 199-4 FF loan 301 (hereinafter “instant real estate”), and did not report the transfer income tax.

B. On January 11, 2010, the Defendant decided and notified the Plaintiff of KRW 3,384,880 as transfer income tax for the year 2007 on the ground that “the Plaintiff acquired the instant real estate at KRW 45 million on February 2, 2007, and transferred it to the largestB on November 9, 2007, and did not report the transfer income tax even after transferring it at KRW 53.5 million.”

[Reasons for Recognition] The Evidence Nos. 1 to 3, Eul No. 1 and 2

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff purchased the instant real estate from KimG and completed the registration of ownership transfer in the name of the Plaintiff, while paying only KRW 10 million of down payment and intermediate payment, but the Plaintiff failed to pay part of intermediate payment and remainder, and thus the sales contract for the instant real estate was revoked. Since the transfer to the largestB of the instant real estate was merely an act of resale of KimG, it cannot be deemed that there was a transfer subject to taxation in relation to the Plaintiff, and thus, the instant disposition otherwise reported is unlawful.

(b) Fact of recognition;

(1) The Plaintiff purchased the instant real estate from KimG on January 20, 2007 in KRW 45 million and completed the registration of ownership transfer in the name of the Plaintiff on February 2, 2002.

(2) The Plaintiff paid 11 million won in cash to KimG as the sales price of the instant real estate. On February 2, 2007, the Plaintiff obtained a loan from HH bank as collateral and paid part of the sales price (the maximum bond amount of 37 million won). Around that time, the Plaintiff occupied the instant real estate.

(3) On October 6, 2007, the Plaintiff sold the instant real estate to the largestB for KRW 53.5 million, and thereafter, the ownership transfer registration was completed in the name of the largestB on November 9, 2007 (a sales contract between the Plaintiff and the largestB entered into between the Plaintiff and the Plaintiff on behalf of the Plaintiff).

(4) Meanwhile, KimG paid business income tax on selling the instant real estate in KRW 45 million to the Plaintiff.

[Ground of recognition] Facts without any dispute, part of Gap evidence Nos. 5, 6, 7, and 9, witness Park J's testimony, the purport of the whole pleadings

C. Determination

As to whether the contract for the sale of the instant real estate between the Plaintiff and KimGG was terminated, the above facts of recognition and the evidence are as follows. ① The Plaintiff purchased the instant real estate from KimGG for KRW 45 million and paid part of the purchase price to KimGG in cash, and the Plaintiff appears to have paid in most of the purchase price. ② The Plaintiff, after the completion of the registration of transfer of ownership by paying the most of the purchase price for the instant real estate, had occupied and resided in the instant real estate. The Plaintiff paid interest on the instant secured loan up to July 2008, ③ the Plaintiff and KimGGG’s interest on the instant real estate loan were delegated the right to dispose of the instant real estate to KimGGG on behalf of the Plaintiff, and accordingly, the Park JJJ sold the instant real estate to the largestB on behalf of the Plaintiff, and accordingly, there is no evidence to acknowledge that the Plaintiff’s transfer of ownership, Kim JG, and Kim JG in order in the sale order of the instant real estate, and there is no reason to acknowledge that some of the Plaintiff’s testimony to the Plaintiff and the witness.

Therefore, since it is difficult to see that the sales contract for the instant real estate was rescinded, the instant disposition that was 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.