Seoul Administrative Court 2010Gudan24695 ( December 28, 2011)

Seocho 2010west 1667 (Law No. 12, 2010)

In the case of unregistered resale, the disposition of imposition by deeming the seller to have transferred to the final buyer is illegal.

Since it is confirmed that real estate purchased by a real estate purchaser as a payment for a loan obligation to a creditor of the person himself/herself and the ownership has been transferred by an intermediate omission, the transfer income tax shall be deemed to have been transferred directly by the seller to the final buyer and the disposition imposed on the seller

2012Nu4526 Revocation of Disposition of Imposing capital gains tax

XX Kim

The Director of the Pacific District Office

Seoul Administrative Court Decision 2010Gudan24695 decided December 28, 2011

May 23, 2012

June 13, 2012

The part of the judgment of the first instance against the plaintiff shall be revoked.

2. The Defendant’s disposition of imposition of capital gains tax of KRW 000 on November 1, 2009 against the Plaintiff on November 1, 200 shall be revoked.

3. All costs of the lawsuit are borne by the defendant.

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of 000 won for the year 2007 against the Plaintiff on November 1, 2009 shall be revoked;

2. Purport of appeal

The same shall apply to the order.

1. Scope of the instant case

The Plaintiff filed a lawsuit against the Defendant seeking revocation of the disposition of imposition of capital gains tax of KRW 000,000, but the court of first instance rendered a judgment in favor of the Plaintiff partially revoking the part exceeding KRW 00,000 among the above disposition of imposition. Since the Plaintiff appealed with respect to the part against the Plaintiff in the judgment of first instance only, this court’s judgment is limited to the disposition of imposition

2. Details of disposition;

"The plaintiff reported on May 31, 2008 the transfer income tax for the transfer income tax of 2007 and transferred the building of this case to the originalA, and on the premise that the acquisition value of the building of this case is 000,000-6 site and the building of this case (hereinafter "the building of this case"), the transfer value of 00,000,000,000,0000,000,000 won for the transfer value of 3,1427 out of the forest land of 00,000,000,000 won for the transfer value of 200,000,000 won for the land of this case, the defendant did not pay the transfer income tax for the building of this case and the forest of this case under the premise that the acquisition value of the building of this case is 00,000,000,000 won for the transfer income tax of this case to the plaintiff (the subject of imposition of transfer income tax for this case).

[Ground of recognition] Facts without dispute, Gap evidence I, 2, 8, 15, Eul evidence Nos. 1 and 5, the whole purport of the pleading

3. Whether the disposition of this case is legitimate

A. The plaintiff's assertion

The Plaintiff transferred the instant building to both BB, and both BB transferred the instant building to the originalA and completed the registration in the middle omission method from the Plaintiff. The imposition disposition made by the Plaintiff on the premise that the purchaser of the instant building is not both BB but the originalA is unlawful.

B. Determination

1) In the event that a first purchaser purchased real estate from a seller and again sells it to a second purchaser by an intermediate omission method, the registration is unlawful in imposing capital gains tax on the premise that a purchaser from a seller is not a first purchaser but a second purchaser (see Supreme Court Decision 87Nu58, May 12, 1987).

2) Facts of recognition

O The Plaintiff decided to sell the instant building to both BB between the twoB on March 7, 2007, and prepared a real estate sales contract with the following contents (Evidence A6, 11).

• The sales price of the instant building is KRW 000.

· The amount of 00 won and the amount of 000 won and the amount of 000 won loan repaid by both Y and Y from Y and bond company shall be deducted from the purchase price.

• The other balance shall be settled thereafter.

• At the same time, the instant building was transferred to the originalA, and at the same time, the right to collateral security, which is the maximum debt amount 000 with respect to the Plaintiff’s buildings under the names of bothCCs, is set up.

• The above contract shall take effect only when it moves the building in this case to the original or to a person wishing to be made by the original or original A.

O The certificate of real estate acquisition (No. 3) submitted by the original AA to the Defendant in connection with the instant disposition was sentenced to the judgment that “B” and the twoCCs filed a lawsuit against the original A, thereby paying KRW 000 to the original A. The twoB purchased the instant building from the Plaintiff and gave KRW 000 to the original A. The sales contract was written by the seller KimD and the buyer. The sales contract was written by the seller KimD and the buyer was written by the original A. The sales price was KRW 00,000. The payment method was written by the set-off disposition.

OHA testified in the first instance court as follows:

Of the 1.3 billion won claims held by both B, both BB received the instant building by means of payment in lieu of the Plaintiff’s KRW 000,000 among the KRW 1.3 billion claims, and the instant building, owned by the Plaintiff, is KRW 00,000. The Plaintiff was not found at the time of concluding the sales contract on the instant building, and both BB had all the documents necessary for the Plaintiff’s painting and the sales contract at the time of the contract.

In the case where the original AA had filed a complaint against the Plaintiff and both B in relation to the payment in substitutes of the instant building with respect to the Seoul Central District Prosecutors' Office in 2007, the Plaintiff asserted that there was only the fact that the Plaintiff sold the instant building to both BB and made a power of attorney (Evidence A7).

3) On March 7, 2007, the Plaintiff drafted a real estate sales contract with the content that the Plaintiff sells the instant building to the originalA in 000 won, and the ownership transfer registration of the instant building was completed in the future from the Plaintiff (Evidence A, No. 1, No. 2, and No. 4). However, the Plaintiff asserted that (i) after the sale of the instant building, the Plaintiff sold the instant building to both B and B other than the originalA after receiving a complaint from the originalA, and the real estate sales contract made between both B and B, the instant building was sold to the two B and the ownership transfer registration was scheduled to be omitted in the middle of the registration to be made in the name of the originalA or the originalA, and (ii) the Plaintiff purchased the instant building from both B and B to the repayment of the loan obligation to the principal debtor, not to conclude a sales contract with the Plaintiff, but to have purchased the building directly from both B and the Plaintiff, the Plaintiff purchased the building from both B and the seller to both B.

In the disposition of capital gains tax, the part concerning the transfer of a building is illegal since the Plaintiff deemed to have transferred the building of this case to the originalA.

4. Conclusion

The decision of the first instance court against the Plaintiff is revoked because it differs from this conclusion. The part pertaining to the transfer of the building of this case among the disposition of this case shall be revoked.