As long as the sales contract of this case was terminated, the disposition of this case on the premise of capital gains is unlawful.

According to the facts of recognition, the sales contract of this case was terminated, and as long as the sales contract of this case was terminated, the plaintiff cannot be deemed to have earned income from the transfer of this case's land.

Article 88 of the former Income Tax Act

2014Guhap6588 Revocation of Disposition of Imposing capital gains tax

AA

Seoul 000Gu 00 00 00 00

Attorney Park Jae-soo, Counsel for the defendant-appellant 000

000 director of the tax office

Litigation performers 000

December 18, 2015

January 15, 2016

1. The Defendant’s imposition disposition of KRW 619,097,400 against the Plaintiff on March 10, 2014 is revoked.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On November 20, 200, 2000 000 000 -00 00 m2 (hereinafter the above 00 m2) owned by the Plaintiff was incorporated into the land transaction permission zone on November 20, 200 and divided into 000 m200 m2 with 000 m200 m200 m200 m200,000,000. The land prior to the instant division was again divided into 000-0 m200 m2 on December 12, 2011 (hereinafter the “instant land”).

B. On February 12, 2007, the Plaintiff received the said down payment from BB on December 31, 2008 on the date of the contract, and received the said remainder payment four times until March 16, 2009.

C. The instant land was released from the land transaction permission zone on January 31, 2012, which was after the subdivision on December 12, 2011.

D. On March 10, 2014, the Defendant imposed capital gains tax of KRW 619,097,40 on the said land on the ground that “the Plaintiff transferred the instant land to BB and received full payment of the purchase price, and the said sale became effective after being excluded from the land transaction permission zone” (hereinafter “instant disposition”).

E. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on March 17, 2014, but was dismissed on July 7, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, 8, 17, Eul evidence Nos. 1, 2, 3 and 6 (including those with abnormal numbers; hereinafter the same shall apply), the testimony of the witness CCC and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Inasmuch as the instant sales contract was rescinded on November 30, 201 as the nonperformance of the obligation by BB, it cannot be deemed that the Plaintiff had income from the transfer of the instant land. The instant disposition was unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Since capital gains tax is levied on income accrued from the transfer of assets, even if the sales contract appears to have been transferred by a sales contract, if the sales contract becomes null and void from the beginning or its last cancellation, etc., in principle, the transferred sales price shall be returned to the transferee in principle, and thus, it cannot be deemed as subject to capital gains tax on the assumption that the transferor’s income is the transferor’s income. Therefore, if the seller cancels the sales contract because the buyer completed the registration of ownership transfer in advance in the course of concluding the sales contract for real estate and the buyer did not perform the obligation for payment of remainder, the above sales contract becomes retroactively null and void, and thus the disposition imposing capital gains tax on the seller is unlawful (see, e.g., Supreme Court Decisions 2001Du5972, Sept. 27, 2002; 2010Du25152, Aug. 25, 2011). Such legal principle applies likewise to cases where the sales contract for real estate was cancelled due to nonperformance of obligations other than the obligation for payment of the buyer.

2) In full view of the statements in Gap evidence Nos. 2 through 5 and 7 through 17, and the testimony of the witness CCC as a whole, the following facts can be acknowledged.

The Corporation BB, at the time of the sale of this case, agreed that BB would pay the Plaintiff the purchase price, which was paid to the Plaintiff by December 31, 2008, by developing the land portion of this case as the factory site and selling it to a third party, by December 31, 2008, which is the remainder of KRW 1,750,000,000, and immediately complete the registration of ownership transfer from the third party by the method of interim omission registration; the transfer income tax to be imposed on the Plaintiff is paid in lieu of BB; and as such, BB agreed that BB would pay for the Plaintiff, who is the owner on the registry until the transfer registration is made in the third party (hereinafter referred to as “the obligation of BB to sell the land of this case to the third party by December 31, 2008, and the obligation to pay taxes and public charges on the land of this case to the Plaintiff, hereinafter referred to as “the obligation to pay taxes and public charges imposed on the Plaintiff”).

BB was unable to develop the land portion of this case as originally planned, and paid only KRW 400 million out of the remainder of KRW 1.75 million until December 31, 2008, which is the remaining payment date, to a third party. The land portion of this case was not sold to the third party. The Plaintiff did not pay taxes and public charges imposed on the land portion.

B B on February 11, 2009, additionally paid the remainder 1.355 million won (1.75 million won - 400 million won) payable to the Plaintiff, but the remainder of 8.5 million won was still not paid, and the obligation to pay taxes and public charges was still not fulfilled.

㉣ 그러던 중 원고는 BBB의 요청에 따라 2009. 3. 13. 분할 전 이 사건 토지에 관하여 DDDD협동조합 앞으로 BBB을 채무자로 하여 채권최고액 13억 원의 근저당권설정등기를 마쳐주었고, BBB은 위 근저당권(이하 '채무자 BBB 근저당권'이라 한다)을 담보로 하여 DDD협동조합으로부터 10억 원을 대출받아 2009.3. 16. 원고에게 나머지 잔금 8억 5천만 원을 지급하였다.

However, BB still failed to perform its obligation to pay taxes and public taxes, and on March 15, 2010, prepared and delivered a document stating the following contents to the Plaintiff:

I agree that no later than the end of October 2010, the transfer of registration will be made for any reason. In addition, I agree that the purchaser of the sale and purchase tax, resident tax, comprehensive real estate tax, medical insurance premium and all other public charges, which were incurred from the land in 2009, will first be arranged by October 30, 200.

However, on October 31, 2010, BB prepared and delivered to the Plaintiff a document stating the following items: “BB, after the lapse of its own time limit, did not perform its duty to sell and pay taxes and public taxes and taxes, and did not fulfill its duty to pay taxes and taxes on November 16, 2010:

Although I promised to adjust all the registrations by October 31, 2010, I did not implement it and did not perform it up to now cause damage to the buyer's president. I would arrange all the taxes in 2009 by November 30, 2010. However, I would like to adjust all the taxes in 2010 at the end of March, 201.

The Plaintiff sent a document stating the declaration of intent (hereinafter “the instant rescission document”) to BB by content-certified mail, and then reached the said document at that time. The Plaintiff failed to comply with the Plaintiff’s requirements by November 30, 201. However, even if BB had failed to obtain a loan under the name of BB due to default of national taxes and local taxes, it is difficult for BB to obtain a loan on November 30, 201, by taking account of the fact that CCC’s loan as the debtor, and if BB did not cancel the mortgage on the instant land before the division, BB would cancel the instant contract. The Plaintiff agreed to the effect that BB was not obligated to pay the instant tax and public charges until December 30, 2011.

On December 8, 201, the National Assembly of Korea completed the registration of the establishment of a collateral security right (hereinafter referred to as “mortgage security right”) of the debtor CCC and the maximum debt amount of 1.95 million won on the land prior to the instant partition. On December 12, 2011, the debtor CCC was repaid with a loan secured by the debtor CCC as a collateral, and the debtor was revoked with BB collateral security right.

DB, however, was not liable to pay taxes and public charges until May 30, 2012, which is the last time limit. On December 24, 2013, the Plaintiff completed the registration of ownership transfer based on a trust contract before the corporation 000.

㉪ BBB은 2015. 7. 8. 원고를 상대로 서울중앙지방법원 2015가합000000호로 이사건 매매는 토지거래허가구역 내 토지에 관하여 허가를 배제하거나 잠탈하기 위하여 체결된 것이어서 무효이고, 설령 그렇지 않더라도 이 사건 해제 서면에 나타난 원고의 해제 의사표시에 따라 해제되었다고 주장하며, 계약 무효에 따른 부당이득 반환 또는계약 해제에 따른 원상회복으로 977,298,800원 및 그 중 일부 금원에 대한 지연손해금의 지급을 구하는 소를 제기하였다.

3) According to the above facts, BB failed to perform its obligation to sell goods and pay taxes and public taxes, which are the obligations stipulated in the instant sales contract, by May 30, 2012, which is the final due date. Moreover, in light of the fact that the Plaintiff completed the registration of ownership transfer in the future on December 24, 2013, which is the final due date after the final due date, and that BB also claims that the instant sales contract was rescinded in accordance with the instant rescission in the case No. 2015Gahap0000, Seoul Central District Court Decision 2015Gahap20000, the instant sales contract was rescinded, the Plaintiff may be deemed to have declared that the final due date and subsequent BB would have reached BB, and it may not be deemed that the said expression of intent reached the said final due date and that part of the evidence Nos. 4, 5, and 8, which appears contrary thereto, cannot be deemed to have been lawfully rescinded on May 30, 2012.

4) Examining these facts in light of the legal principles as seen earlier, insofar as the above sales contract was rescinded, the Plaintiff cannot be deemed to have earned income from the transfer of land, and thus, the instant disposition issued on a different premise is deemed unlawful.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition.