Seoul Administrative Court Decision 201Gudan27905 ( October 24, 2012)

Cho High Court Decision 201Do2205 (Law No. 11, 2011)

Since the sales contract seems to have been terminated, this disposition is illegal as an unregistered pre-sale.

In light of the fact that there is no sales contract prepared between the Plaintiff and the final buyer and there is no document confirming the seller, there is no evidence to deem that the gains from transfer accrue to the Plaintiff, and that the amount deposited into the deposit account in the Plaintiff’s name is consistent with the sales price that was returned at the time of cancellation of the sales contract, etc., the disposition that the Plaintiff acquired gains

2012Nu15069 Revocation of disposition of imposing capital gains tax

Ansan

Head of Geumcheon Tax Office

Seoul Administrative Court Decision 2011Gudan27905 decided April 24, 2012

September 19, 2012

November 14, 2012

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2004 against the Plaintiff on May 1, 201 shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of disposition;

A. On June 16, 2003, the Plaintiff purchased 400,066 m2 (hereinafter “instant land”) from the Kim Jong-si from Sinung-si on a 000 won, and the down payment amount of 000 won shall be paid on July 10, 2003, and the remainder amount of 000 won shall be paid on August 14, 2003, respectively, and the remainder amount of 00 won shall be succeeded by the purchaser of the loan (hereinafter “the instant sales contract”); (b) after investigating the transfer of the instant land, the Defendant issued a sales contract with the Plaintiff on February 5, 2004, determined that the Plaintiff acquired 00 gains from selling the instant land unregistered for the non-sale of the instant land on a 00-1 basis; and (c) notified the Plaintiff of the transfer income tax for 2014.

C. The Plaintiff dissatisfied with the instant disposition and filed an appeal with the Tax Tribunal on June 9, 201, but was dismissed on August 11, 201.

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 4, Eul l through 4 (including virtual numbers; hereinafter the same shall apply)

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff concluded a sales contract with KimA on the instant land and paid KRW 000,000, which is a part of the purchase price, but was aware that it was impossible to register the ownership transfer because it did not obtain the qualification certificate for acquisition of farmland, and only cancelled the sales contract under the understanding of KimA, and returned KRW 00,000,000, which was already paid. The instant disposition that imposed capital gains tax on the instant land

B. Determination

1) In administrative litigation regarding taxation, a taxation authority has the burden of proof with respect to the facts that meet the requirements for taxation, such as the grounds for taxation and the amount of tax base (see, e.g., Supreme Court Decision 80Nu521, May 26, 1981).

Since the Defendant disposed of the instant land under the premise that the Plaintiff acquired transfer margin of KRW 000 on the premise that it sold the instant land, it was examined whether the Plaintiff obtained transfer margin by selling the instant land unregistered.

2) On June 16, 2003, the Plaintiff entered into the instant sales contract with KimA to purchase the instant land at KRW 000, as seen earlier, and comprehensively taking account of the overall purport of the pleadings, the Plaintiff paid KRW 000 to KimA as down payment and intermediate payment, and the mediation of the instant sales contract was made at the request of ChoA, the husband of the Plaintiff, and the purchaser and buyer B was aware that the Plaintiff entered into the sales contract with the HuCC representing the Plaintiff after undergoing an investigation of property tax integration, but it was not sufficient to support that the Plaintiff acquired gains gains from the transfer of the instant land to Seo-B by selling the instant land on behalf of the Plaintiff and obtaining gains gains gains from the transfer, and there is no other evidence to support otherwise.

3) Rather, in light of the following circumstances, which are acknowledged by comprehensively taking account of the evidence Nos. 3, evidence Nos. 1, 2, 5 through 8, and 11 as well as the overall purport of the testimony and pleadings of the witness of the first instance trial, there is room for room for the Plaintiff and KimA to sell the instant land to B after the conclusion of the agreement between the Plaintiff and KimA.

① There is no objective document to establish a seller at present because there is no sales contract for the instant land made between the Plaintiff and SeoB.

② On February 5, 2004, 100 won at par value on March 2, 2004, 2000 won at par value on March 2, 2004, and 2, 2000 won at par value on March 17, 2004, and 200 won at par value on March 17, 2004, were paid to KimF. However, it is recognized that 00 won at face value on March 17, 2004 with the deposit account in the Plaintiff’s name was paid to the Plaintiff, and there is no evidence to deem otherwise that the transfer margin of the instant land was reverted to the Plaintiff.

③ On the other hand, the above KRW 00,00, deposited into the deposit account in the name of the Plaintiff, is consistent with the purchase price that the Plaintiff cancelled and returned, and thus, the Plaintiff’s assertion is persuasive. In order to smoothly cancel the instant sales contract with KimA, the Plaintiff seems to have necessary to allow HuCC, an assistant of the broker, to color the new purchaser.

④ At the time of filing a report on capital gains tax on the instant land, SB submitted a sales contract (No. 9) dated February 5, 2004, which was a seller’s ChoE, buyer’s bookB, and sales contract (No. 11) and seller’s KimF, buyer’s letterB, and sales contract (No. 11) on February 18, 2004, which was 00 sales price. However, as a result of the Defendant’s on-site investigation, the above sales contract was revealed to be forged and forged by SB, and thus, the statement by SB on the details of the instant land transaction is insufficient.

C. Sub-committee

Therefore, the Defendant’s disposition of this case, based on the premise that the Plaintiff obtained transfer marginal profit by selling the instant land unregistered, is unlawful. The Plaintiff’s assertion is with merit.

3. Conclusion

The plaintiff's claim is justified and accepted. The judgment of the court of first instance that deemed the disposition of this case lawful is improper. The judgment of the court of first instance is revoked, and the disposition of this case is revoked.