Whether the contract deposit, etc. that the Plaintiff actually received is included in the transfer price.

In light of the circumstances that the Plaintiff received down payment and intermediate payment pursuant to the first sales contract and that the first sales contract becomes effective in the relevant trial, it cannot be deemed that the second sales contract of this case is on the extension of the first sales contract, and it cannot be deemed that the first sales contract of this case was rescinded.

Article 96 of the Income Tax Act

Suwon District Court 2016Gudan8481 Revocation of Disposition of Imposing Capital Gains Tax

AA

K Director of the Korean Tax Office

September 6, 2017

oly 18, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. Details of the disposition;

A. On February 8, 2012, the Plaintiff transferred to SSS two buildings, including the aggregate of 7,804 square meters of land (347-1, , 348-3, , and 348-7 square meters of land) and 560.25 square meters of the total of 7,804 square meters of land (hereinafter referred to as “the real estate of this case”) on the same date as the transfer price and acquisition price of 750,000,000 won on April 27, 2012.

B. On July 6, 2015, the Defendant: (a) conducted a tax investigation of capital gains tax on the Plaintiff; (b) deemed the transfer value of the instant real estate as KRW 1,215,00,00 (i.e., KRW 100 million + KRW 300,000 + KRW 750,000 + KRW 65,000 + lease deposit and expenses for changing the form and quality of the real estate + KRW 65,000); and (c) notified the Plaintiff of the correction and notification of KRW 140,915,830 (including additional tax) of the capital gains tax for the year 2012 (hereinafter referred to as “instant disposition”). The Plaintiff dissatisfied with this, the Plaintiff filed a request with the Tax Tribunal on March 29, 2016, but was dismissed on June 15, 2016.

[Ground of recognition] No dispute, Gap 1, 2, Eul 1, and 2

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

On July 10, 2004, the oral sales contract for the instant real estate was lawfully rescinded by agreement between the parties prior to the payment of the balance, and the sum of the down payment and the intermediate payment received by the Plaintiff according to the said sales contract was replaced by the damages for mental suffering suffered by the Plaintiff due to the tort, such as SS, and the new sales contract was concluded between the Plaintiff and SS as of December 22, 201, and the said contract was deemed to be the transfer value of KRW 750,000,000 as the purchase price. However, the Defendant’s disposal of the instant real estate should be revoked by illegality.

(b) Fact of recognition;

1) On September 18, 2003, the Plaintiff entered into a lease agreement with SSD on the instant real estate, and agreed not to transfer the said real estate to another person within 20 million won within 10 billion won if the lessee requests the purchase of the instant real estate due to a special agreement, and within 20 billion won, within 20 months, the Plaintiff agreed not to transfer the said real estate to another person.

2) On July 10, 2004, the Plaintiff entered into a sales contract with SS to transfer the instant real estate in KRW 1.25 billion (hereinafter “the first sales contract”) in accordance with the terms and conditions of the said lease contract, and the Plaintiff received KRW 400 million in total from SS, including the down payment of KRW 100 million on July 10, 2004 and the intermediate payment of KRW 300 million on July 26, 2004.

3) 이후 원고는 2004. 7. 10.자로 SSS이 대표이사로 있는 QQQ관광호텔 주식회사(이하 '천안법인'이라고 한다)와 사이에 이 사건 부동산에 관하여 대금 2억 2,000만 원에 매매예약계약서를 작성하였고, 계약 당일 증거금 6,500만 원을 지급받았다.

4) On January 5, 2005, the Plaintiff filed a civil lawsuit (hereinafter referred to as the “first civil lawsuit”) against Suwon District Court, the title holder of the contract for the purchase and sale of the said balance, to pay the balance of KRW 2005,000,000 (hereinafter referred to as “the first civil lawsuit”) under the title holder of the contract for the purchase and sale of the said balance. The Plaintiff brought a counterclaim (2005,000,000 already paid) as it constitutes a loan. The Plaintiff won the entire payment at the first instance court (Seoul High Court 2005Na888**) but the second instance court (Seoul High Court 2005,500,000 won received as the down payment of the contract as the down payment of the said balance, deeming it as part of the remainder and became final and conclusive on October 13, 2006 (Seoul High Court 200,000 won).

5) SSS은 1차 민사소송이 확정될 무렵 원고를 상대로 대여금 4억 원을 편취당했다는 취지로 고소를 하였으나 검찰에서 2007. 2. 22. 혐의없음 결정이 내려졌고, 1차 민사소송의 1심 재판에서 원고 주장에 부합하는 증언을 하였던 FFF을 상대로 위증으로 고소하였으나 오히려 2007. 5. 1.경 서울중앙지방법원에서 무고죄로 벌금 500만 원의 약식명령을 받았다. 또한 SSS은 2009. 7. 1. 서울동부지방법원(2007고단3**)에서 GGG(주식회사 QQQ관광의 관리부장)에 대한 형사사건에 증인으로 출석하여 위 4억 원을 대여금이라는 취지로 위증하였다는 이유로 징역 8월에 집행유예 2년의 유죄판결을 받았고, 2010. 1. 28. 의정부지방법원(2007고단27**)에서도 원고를 상대로 4억 원의 대여금 반소청구를 하고 위 돈을 편취하였다며 고소한 사실에 대하여 사기미 수 및 무고로 징역 10월에 집행유예 2년의 유죄판결을 받았다.

6) On the other hand, in the case where the Plaintiff filed an accusation against GGGG which testified as the loan amounting to the above KRW 400 million in the first civil lawsuit, GG was convicted of imprisonment for eight months with prison labor for perjury in the Seoul Eastern District Court (2006dan26*) on November 17, 2006. GG was convicted of two years of suspended sentence on August 10, 2012. GG was convicted of two years of imprisonment with prison labor for a total of 10 months on the grounds that the said KRW 400 million was a loan, in the case of attempted fraud, etc. of SG in the case of GG on August 10, 2012.

7) On November 27, 2009, the Plaintiff filed a lawsuit seeking the payment of the balance (hereinafter referred to as the “second civil lawsuit”) against the Seoul East Eastern District Court 2009Gahap21** as the Seoul East East Eastern District Court 2009Gahap21*, the Plaintiff filed a lawsuit claiming the payment of the balance against WW tourist Hotel Co., Ltd. (hereinafter referred to as the “Seoul Corporation”) by asserting that it is the actual party to the first sale contract. The above court dismissed the claim for SS and rendered a judgment in favor of some of the claims cited for the remainder of KRW 785,00,000 against the Seoul Corporation. However, the second instance court (Seoul High Court 2010Na56*), unlike the first instance court, dismissed the claim against the Seoul Corporation and received the procedure for registration cancellation of part of the registration established on the instant real estate as the actual party, and paid the remainder to the Plaintiff KRW 785,000,000,000.

8) On January 20, 2010, SS issued a written notice demanding the Plaintiff to waive to the Plaintiff an agreed amount and withdraw a civil and criminal lawsuit pending in the first sale contract, which was being tried to commit fraud and without accusation, as seen above, (i) 400 million won paid as the down payment and intermediate payment of the first sale contract to the Plaintiff.

9) On December 22, 2011, the Plaintiff entered into a contract with SS to sell the instant real estate again in KRW 750,000,00 (hereinafter “the second sale contract”). According to the contract, the Plaintiff agreed to pay KRW 200,000 to SS on the date of the contract, and the intermediate payment of KRW 250,000,000,000,000,000,000,000,000 on the date of the contract; and the remainder of KRW 300,000,000,000,000

10) On February 8, 2012, the Plaintiff received any balance specified in the second sales contract from SS, and completed the registration of ownership transfer for the instant real estate to SS.

11) Meanwhile, immediately after receiving the down payment pursuant to the second sales contract as above, the Plaintiff submitted a written application seeking the preference of GGG to the full bench in a criminal case (government district court 2011Kadan2**) in which GG had been prosecuted for perjury, etc., and submitted a written application seeking the preference of GGG to the same full bench around February 24, 2012, after completing the registration of the transfer of ownership on the instant real estate and completing the registration of the transfer thereof.

12) On April 27, 2012, the Plaintiff filed a preliminary return on capital gains tax with the transfer value and acquisition value of KRW 750,000,000 to the Defendant.

C. Determination

1) The interpretation of a declaration of intent is clearly confirming the objective meaning given by the party to an act of expression. In a case where the objective meaning is not clearly revealed by the party’s language and text, it shall be reasonably interpreted in accordance with logical and empirical rules and common sense of society so as to conform to the ideology of social justice and equity (see, e.g., Supreme Court Decision 92Nu1809, Jun. 8, 1993) by comprehensively taking into account the motive and background leading up to the expression of intent, the purpose and genuine intent that the party intended to achieve by the expression of intent, etc. (see, e.g., Supreme Court Decision 92Nu1809, Jun. 8, 1993). In full view of the facts and circumstances revealed in the aforementioned facts, the Defendant’s disposal of the Plaintiff’s real estate as the total purchase price of KRW 1250,000,000 which was actually received by the Plaintiff among the purchase price stipulated in the first sale contract on July 10, 2004;

In the first and second civil lawsuits where the amount of the purchase price for the instant real estate is directly disputed between the Plaintiff and the SS, KRW 785,000,000 calculated by deducting the purchase price for the instant real estate from KRW 1.25 million and the intermediate payment KRW 300,000,000 already received by the Plaintiff, on the premise that the purchase price for the instant real estate was a total of KRW 1.25,50,000,000, and KRW 785,000,000, which was calculated by deducting the purchase price for the instant real estate from the purchase price, was finally recognized as the remainder, and the SS asserted that the total of KRW 40,000,000, which was paid as the down payment and the intermediate

○S and GGG testified in the court to the effect that the above KRW 400 million is a loan, separate from the above civil litigation, or filed a complaint with an investigation agency on the premise of the above, but both were convicted of perjury or an incompetence in the relevant criminal trial.

Although the timing of the first sales contract and the second sales contract differs for not less than seven years, the second sales contract shall be deemed to be on the extension line of the first sales contract, as long as the second sales contract was made for the same real estate as KRW 750,000,000, which was remarkably reduced from the remainder finalized by the Plaintiff after the first sales contract became final and conclusive as the amount of KRW 785,00,000 for a civil lawsuit seeking payment of the remainder for the Plaintiff’s failure to pay the remainder to the Plaintiff for not less than seven years. As seen later, it is difficult to view that the first sales contract was rescinded as seen earlier.

The lower court consistently testified to the effect that the amount of the second sales contract was adjusted to KRW 750 million between the Plaintiff and SS, which was determined by the judgment at the end of the 78-year trial on the balance of the sales under the first sales contract and HHDo, and that the second sales contract was not for receiving a written withdrawal of an application or a complaint from the criminal trial in which GG was receiving at the time.

○ The Plaintiff sent a notice to the Plaintiff around January 20, 2010 that SS would waive the payment of KRW 400 million to the down payment and intermediate payment of the first sales contract. Accordingly, the Plaintiff asserts that the first sales contract was lawfully rescinded or that the SS would waive the said KRW 400 million by itself constitutes the payment of compensation for damages. However, the Plaintiff submitted a letter of application and cancellation of complaint after the receipt of the down payment or remainder under the second sales contract after about two years from the date of receipt of the said notice from SS, not immediately submit the written application, but immediately submit the written application, etc., and the intention of SS should be deemed as a condition to submit the written application or withdrawal of complaint against the Plaintiff rather than unilaterally giving up KRW 400 million.

In addition, in light of the fact that it is difficult for the Plaintiff to understand that the acquisition value and transfer value of the instant real estate are the same even if the Plaintiff possessed the instant real estate for 14 years without consideration, as the Plaintiff voluntarily acknowledged, the amount actually disbursed at the time of acquiring the instant real estate reaches KRW 1150 million, and there is no objective data such as the appraisal value and the market value of the instant real estate, etc., the Plaintiff cannot be deemed to have appropriately reflected the value at the time of transfer at the time of transfer.

3) Therefore, the Plaintiff’s assertion cannot be accepted, and the instant disposition is lawful.

3. Conclusion

The plaintiff's claim is dismissed. It is so decided as per Disposition.