Cho Jae-2013- Daejeon-2098 ( October 13, 2014)

Based on the substance over form principle, the Plaintiff acquired the instant land in KRW 90 million.

Based on the principle of substantial taxation, it is reasonable to view that the Plaintiff acquired the instant land in the amount of KRW 90 million.

Article 14 of the Framework Act on National Taxes

2014Gudan606 Revocation of Disposition of Imposing capital gains tax

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○ Head of tax office

October 17, 2014

November 14, 2014

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 capital gains tax of 2008 against the Plaintiff on February 4, 2013 is revoked.

1. Details of the disposition;

A. On March 25, 2004, the seller A and the buyer entered into a sales contract for the instant land located within the land transaction permission zone (hereinafter “instant sales contract”). The main content of the instant sales contract is “the sales price of KRW 90 million, the down payment of KRW 50 million, the intermediate payment of KRW 15 million (payment on January 19, 2005), the remainder of KRW 25 million (payment on January 20, 2005), and the special agreement; 1. Transfer registration of ownership transfer is at any time at the time of the buyer’s wishes. 2. The registration of creation of collateral security and provisional seizure should be terminated simultaneously with the remainder.”

B. On the land of this case, the registration of seizure on March 5, 2004 was cancelled on the ground of cancellation on January 24, 2005, and the registration of remaining seizure or provisional seizure was not remaining on the ground of cancellation on January 26, 2005. On January 15, 2002, the registration of establishment of neighboring mortgage (the maximum amount of claims KRW 42 million, debtor Aaa, and debtor-mortgaged agricultural cooperative) was cancelled on January 31, 2005 on the ground of cancellation on January 20, 205. The Plaintiff’s right to collateral security (C) on the land of this case became one, two, and three order of priority.

C. On the instant land, the Plaintiff as the mortgagee, the debtor as the mortgagee, and the debtor: ① on March 25, 2004, the maximum debt amount of KRW 50 million; ② on January 21, 2005, the maximum debt amount of KRW 70 million; ③ on May 18, 2006, the establishment registration of each of the mortgages of KRW 160 million was completed.

D. On July 2007, the Plaintiff applied for a voluntary auction of the instant land on or around the basis of the right to collateral security. The Plaintiff participated in the bid in the Daejeon District Court 2007 Ma○○○○○○ case and was decided to permit the sale on December 5, 2007. On January 29, 2008, the Plaintiff received dividends of KRW 194,943,901 out of KRW 196,61,61, 196,61, 2000, 2000, 2007, 2007, 2007, 2000,000 won, 1,669,090 won, 200,000 won, 33,650 won, and 1,585,440 won, as the next priority holder of the right to collateral security.

E. On February 19, 2008, ○○○ Corporation acquired the instant land from the Plaintiff in consultation with the public site amounting to KRW 219,344,560.

F. On February 4, 2013, the Plaintiff reported and paid the transfer income tax with the acquisition value of the instant land as KRW 200 million, and the Defendant notified the Plaintiff of the acquisition value of the instant land as KRW 90 million after deducting the transfer income tax (including additional tax) accrued in 2008 from the Plaintiff.

[Ground of recognition] Facts without dispute, Gap 2, 3, 9 through 11, Eul 1, Eul 4-1, Eul 4-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff paid KRW 50 million to Aa on the day of the instant sales contract, and KRW 22 million on January 24, 2005, and KRW 72 million on which the Plaintiff failed to obtain land transaction permission, and was unable to obtain the registration of ownership transfer. Aa demanded the Plaintiff to make additional payments for the development litigation for ○○○ Construction. On May 17, 2006, the Plaintiff paid KRW 40 million to Aa on May 17, 2006, with the maximum debt amount of KRW 160 million plus KRW 160 million. The Plaintiff paid KRW 30 million in cash to Aa on May 17, 2006, and thereafter paid KRW 10 million to the remainder of KRW 10 million. Aa was again demanded to make an additional payment, and the Plaintiff was auctioned on the land of this case on November 2, 2007, and the Plaintiff received KRW 200,000.

The Plaintiff did not purchase the instant land for the purpose of excluding or evading land transaction permission from the beginning. Since the instant sales contract was finally null and void due to auction, the Plaintiff acquired the instant land at KRW 200 million on January 29, 2008, in full, with the sale price paid. The instant disposition is an illegal and unfair disposition contrary to the principle of no taxation without law, tax justice, and equity.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) The following circumstances acknowledged by the circumstances surrounding the instant disposition, i.e., the instant sales

In light of the following: (a) there is no agreement with regard to a land transaction permit under a contract; and (b) the special agreement provides for the registration of transfer of ownership at the time desired by the Plaintiff; (c) the Plaintiff established a right to collateral security with the maximum debt amount exceeding the purchase price under the instant contract for three times since March 25, 2004, which was concluded by the Plaintiff; (c) the Plaintiff did not take any procedure for a land transaction permit or a registration of transfer of ownership for three years or longer; and (d) the Plaintiff acquired the ownership of the instant land using an auction procedure for which the land transaction permit is not applicable by voluntarily applying for an auction; and (e) the instant transaction contract is deemed null and void from the beginning

2) However, the main sentence of Article 88(1) of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006) provides that "transfer" in Article 4(1)3 and this Chapter means that an asset is actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., regardless of its registration or enrollment," and does not require that a contract, such as sale and purchase, which is the cause of the transfer for price transfer, should be legally effective.

In light of the following circumstances, Gap evidence No. 4, Eul evidence No. 2, Eul evidence No. 1, Eul evidence No. 2, Eul evidence No. 1, Eul evidence No. 2, Eul evidence No. 1, Eul evidence No. 2, evidence No. 1, and evidence No. 1, and evidence No. 300,000 won was additionally stated in the contract No. 9, and evidence No. 1, 200,000 won was stated in the court below's order that the plaintiff's purchase price No. 1, 200,000 won was transferred to the plaintiff. 1, 200,000 won. 3,00,000 won of the purchase price No. 1,00 won of the purchase price No. 1,00 won of the purchase price No. 1,000 won of the purchase price No. 2,00,000 won of the purchase price No. 30,000 won of the purchase price.

3) Therefore, the instant disposition is lawful, and the Plaintiff’s assertion is without merit.

3. Conclusion

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

(c)