Cho High Court Decision 201Do0368 ( October 20, 2011)

The disposition imposing capital gains tax is legitimate because it is deemed as the actual attribution of gains on the transfer of apartment sale rights.

The disposition imposing capital gains tax by deeming the plaintiff as the actual owner of gains on the transfer of the right to sell apartment to a third party after transferring the right to sell apartment to the transferee by the third party, but there is no evidence to acknowledge it.

2011Gudan23682 Revocation of Disposition of Imposing capital gains tax

XX

Gangwon-gu Director of the District Office

June 19, 2012

July 17, 2012

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 000 on June 15, 2010 against the Plaintiff shall be revoked.

1. Details of the disposition;

A. The Plaintiff owned the right to sell ' XX apartment' (hereinafter referred to as "the right to sell the instant apartment") that is to be constructed on the land of 000 and 2,613 square meters of Seongdong-gu Seoul, but transferred the right to sell the instant apartment, on September 28, 2005, and reported and paid to the Defendant at that time the transfer value of 00 won and the acquisition value of 000 won as 00 won and 000 won for the transfer income tax of 2005. However, on June 15, 2010, the Defendant reported the transfer value of the right to sell the instant apartment to the Plaintiff as 00 won and re-calculated the transfer margin, and then decided and notified the increase in transfer income tax of 2000 won for the transfer income tax of 2005.

[Reasons for Recognition] Unsatisfy, entry of Eul's evidence (including each number), the whole purport of pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff transferred the instant right to sell to ParkA in KRW 000, and thereafter, since ParkA transferred the instant right to sell to O development, the actual transferor of the instant right to sell was not the Plaintiff, not the Plaintiff. Therefore, even if the actual owner of the gains on the transfer of the right to sell the instant right is not the Plaintiff, the instant disposition that reported otherwise is unlawful.

B. Determination

With respect to the fact that the Plaintiff transferred the instant sales right to ParkA in KRW 000, or that the actual owner of the gains from the transfer of the instant sales right is ParkA, it is insufficient to recognize the said right only by the entries of the evidence Nos. 1 and 7, and there is no other evidence to acknowledge the Plaintiff’s assertion, the Plaintiff’s assertion is without merit.

3. Conclusion

Therefore, the disposition of this case is lawful, and the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.