Seoul Administrative Court 2012Gudan18236 ( October 05, 2014)

It constitutes a taxable object of capital gains tax due to the invalidation of the cause of the sales contract for the instant real estate or the lawful cancellation of the contract.

If a sales contract is terminated, its effect is retroactively lost, and the transfer of the real estate of this case is not carried out, so it cannot be deemed that there is a transfer of assets, which are the taxation requirement of the transfer income tax, and even if the Plaintiff acquires the right to claim compensation for damages arising therefrom, it cannot be deemed as income resulting from such transfer.

2014Nu3527 Revocation of revocation of request for rectification

Hasa

head of Sung Dong Tax Office

Seoul Administrative Court Decision 2012Gudan18236 decided March 5, 2014

August 28, 2014

September 25, 2014

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition rejecting capital gains tax correction against the Plaintiff on March 27, 2012 shall be revoked.

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

The same shall apply to the order.

1. Partial citement of judgment of the first instance;

The reasoning of the judgment of this court is as follows: (a) whether the disposition was legitimate; (b) whether the disposition was made on January 2, 201; and (b) the Plaintiff’s assertion; (c) further, up to the second bottom of the judgment of the court of first instance until the relevant statutes, the former BB did not pay the above remainder of the OB by January 18, 2012; and (d) the pertinent part of the reasoning of the judgment of the court of first instance (from the second one to the third one and the 12 pages and the 9 pages) is the same as the corresponding part of the reasoning of the judgment of the court of first instance, and thus, it is cited pursuant to Article 8(2) of the Administrative Litigation Act; and

2. Determination

“If the Plaintiff notifies the former BB of the purport that the sales contract will be terminated by January 18, 2012, the remainder of the sales price will be paid by January 18, 2012.” This case’s sales contract was lawfully rescinded at that time (see, e.g., Supreme Court Decisions 80DaO20, Apr. 14, 1981; 92DaOO22, Dec. 22, 1992). If the sales contract of this case was lawfully rescinded, the sales contract of this case would retroactively lose its effect, and it would not be transferred to the instant real estate. Thus, even if the purchase price of the Plaintiff received from the former B is returned to the Plaintiff by the said deadline, it cannot be deemed that there was a transfer of the instant real estate by the former BO8, which is the requirement for taxation of the transfer income tax (see, e.g., Supreme Court en banc Decision 90Da1884, Apr. 18, 1982).

However, the disposition of this case is unlawful since it is based on the premise that the transfer of the real estate of this case occurred to the plaintiff.

3. Conclusion

If so, the plaintiff's claim should be accepted with due reasons, and the judgment of the court of first instance is unfair with different conclusions, so the plaintiff's appeal is accepted and the judgment of the court of first instance is revoked, and the disposition of this case