Seoul Administrative Court-2015-12-18 ( December 18, 2015)

Cho High-2014-Seoul Government-5141 ( October 26, 2014)

If compensation has been paid after a contract for consultation sales, the time of calculating capital gains tax.

If land is actually transferred for consideration due to the performance of the contract, the transfer income tax should be calculated on the basis of the original contract price, if the land is actually transferred for consideration although the validity of the contract for the purchase and sale of the land is disputed in appearance.

Article 4 of the Income Tax Act shall be classified.

2016Nu3272 Revocation of disposition rejecting capital gains tax rectification

GoA 200

BB Director of the Tax Office

August 25, 2016

September 22, 2016

1. The part against the defendant among the judgment of the court of first instance is revoked, and the plaintiffs' claims corresponding to the revoked part are dismissed in entirety.

2. The costs of the lawsuit are assessed against the Plaintiffs.

The Defendant’s refusal to rectify the transfer income tax of KRW 292,760 for the year 2007, the transfer income tax of KRW 215,970 for the year 2008, and the transfer income tax of KRW 215,970 for the year 2008, and the transfer income tax of KRW 292,760 for the year 2007 for the transfer income tax of KRW 292,760 for the transfer income tax of KRW 200 for the year 207, which was paid by the Defendant to the Plaintiff to the Plaintiff from the Plaintiff to the Plaintiff on October 28

Each disposition rejecting correction shall be revoked in full.

2. Purport of appeal

The same shall apply to the order.

1. Scope of the judgment of this court;

The plaintiffs sought revocation of each rejection disposition on the transfer income tax for the year 2007 and the transfer income tax for the year 2008, as stated in the claims in the first instance court. The first instance court dismissed the lawsuit of revocation of each correction refusal disposition on the portion exceeding KRW 182,971 of the transfer income tax for the year 2007 and the transfer income tax for the year 2008, and KRW 134,979 of the transfer income tax for the year 2007, respectively, and revoked each correction refusal disposition on KRW 182,971 of the transfer income tax for the year 2007 and KRW 134,979 of the transfer income tax for the year 208. Accordingly, only the defendant appealed, and the plaintiffs did not appeal against the plaintiffs. Accordingly, the scope of the judgment of this court is limited to KRW 182,971 of the transfer income tax for the year 207, and the transfer income tax for the year 2008.

2. Details of the disposition;

This Court's explanation concerning this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance (from No. 15 to No. 16 of the second instance), except for a partial dismissal as follows. Thus, this Court's explanation 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.

Parts used for cutting.

○ The first instance court's decision No. 11 stated " August 5, 2014" as " July 29, 2014".

○○ Decision No. 14 of the first instance court’s 4th trial, “Plaintiffs had gone through the preceding trial process” means that “Plaintiffs filed a request with the Tax Tribunal on October 14, 2014, but was dismissed on December 26, 2014.”

3. Whether the instant disposition is lawful

A. The plaintiffs' assertion

The instant contract between the Plaintiffs and D.D. was erroneously revoked, and there was no legal act to transfer assets for consideration, and thus, it was impossible to return originals, and thus, received money after deducting compensation received as unjust enrichment or damages, and thus, it did not receive compensation for the transfer of assets. Therefore, the instant disposition on the premise that the instant contract for the purchase and sale of assets constitutes the transfer of assets under the Income Tax Act is unlawful.

B. Determination

1) The main sentence of Article 88(1) of the Income Tax Act provides that “transfer” means the actual transfer of an asset at a cost due to sale, exchange, investment in kind in a corporation, etc., regardless of registration or enrollment of the asset, and does not require that the contract, such as sale, exchange, investment in kind, etc., which is the cause of the transfer at a cost, be valid by law (see, e.g., Supreme Court en banc Decision 2010Du23644, Jul. 21, 20

2) As to the instant case, the Plaintiffs’ claim for return of unjust enrichment was concluded through the instant conciliation decision at the appellate court (Seoul High Court 2012Na30320) which filed with the Defendant of Suwon District Court for DD, and the instant claim for restitution of unjust enrichment was not finally cancelled on the ground that the instant contract for the instant contract was erroneous. ② The ownership of the instant land was transferred to DD, and the Plaintiffs received compensation from DD, after receiving the compensation from DD, received the compensation from DD, for the amount equivalent to the difference between the legitimate amount of compensation and the legitimate amount of compensation, and obtained the compensation for the transfer of the instant land, thereby holding economic benefits from the benefits paid to both parties. ③ As seen earlier, the Plaintiffs’ claim for the instant land was filed between the Plaintiffs and DD, and the dispute was concluded upon the final conclusion of the instant conciliation decision, and the Plaintiffs’ claim for transfer of the instant land did not impose transfer income tax on the grounds that it did not amount to the transfer of the instant land, compared to the transfer of the instant land.

4. Conclusion

Therefore, the disposition of this case is justified, and the plaintiffs' claim against the defendant is dismissed. Since the part against the defendant in the judgment of the court of first instance is unfair with different conclusions, the part against the defendant in the judgment of the court of first instance which accepted the defendant's appeal against the plaintiffs is revoked, and the part against the defendant in the judgment of the court of first instance which ruled that the plaintiffs' claim