Daejeon District Court 201Guhap2639 ( October 27, 2012)

National Tax Service Review and Transfer 2011-0061 ( October 27, 2011)

purchase and resale of real estate jointly.

Since the declaration of intention by one of the joint buyers does not have the effect of cancelling a contract, there is no evidence to acknowledge that the joint buyers have declared their intent of cancelling a contract, so the sale contract cannot be deemed to have been rescinded, and the resale of real estate is a joint act and a disposition imposing capital gains tax on the gains from resale is legitimate

2012Nu1592 Revocation of disposition of imposing capital gains tax

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Daejeon director of the tax office

Daejeon District Court Decision 201Guhap2639 Decided June 27, 2012

November 15, 2012

December 20, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

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

On December 1, 2010, the Defendant revoked the disposition of imposition of capital gains tax of KRW 000 for the transfer income tax belonging to the year 2005 against the Plaintiff (the Plaintiff reduced its claim in the trial).

Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

"A. On May 19, 2004, the Plaintiff entered into a sales contract with the competentB, with a half of each share, to purchase 12,964 square meters of land 000 OOOO 00 in Daejeon-gu and 212.72 square meters of housing (hereinafter "the real estate in this case") from woodCC (hereinafter "the sales contract in this case"). B. The rightB entered into a real estate sales contract with the effect that it sells the real estate in 000 won under the name of woodCC on August 2, 2004 when the part of the sales contract in this case was not fulfilled. On July 19, 2005, the rightB completed the registration of ownership transfer from woodCC for the real estate in the name of 00 won.

C. After investigating the transfer of the instant real estate, the Defendant determined on August 2, 2004 that the Plaintiff and the competentB had sold the instant real estate unregistered and filed a non-reported transfer income tax without filing a transfer report with D on August 2, 2004, and determined KRW 000 per half of the transfer margin calculated by deducting the acquisition price of KRW 000 from the purchase price of the unregistered pre-sale and KRW 000 from the purchase price of the unregistered pre-sale and KRW 000,000 from the purchase price of the unregistered pre-sale, and notified the Plaintiff and the competentB of each transfer income tax for the year 2005.

D. The rightB paid capital gains tax in accordance with the above decision notice, while the Plaintiff dissatisfied with this, filed a request for review with the National Tax Service on February 24, 2011, and the said request was dismissed on May 27, 2011.

E. Meanwhile, on November 6, 2012, when the lawsuit of this case is pending, the Defendant changed the term "the application of heavy tax rate (70%) to the transfer of the right to acquire real estate for less than two years in the holding period to the middle and high tax rate (40%) for the transfer of the right to acquire real estate for less than two years, and corrected the tax amount of the above KRW 000 against the Plaintiff as KRW 000 (the remaining part after correction to the Plaintiff).

[The facts without dispute over the basis of recognition, Gap's 1 through 3, 5 (including each number), and Eul's 1, 9, and 10, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although the Plaintiff received KRW 000 from HCC, it was not received as a penalty for breach of contract due to the seller’s nonperformance of contract, but as a result, the Plaintiff did not participate in the process of purchasing the instant real estate from HCC as the owner of the rightB after the cancellation of the instant sales contract, and the instant disposition premised on other private theories should be revoked somewhat.

B. Relevant statutes

The parts of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005) are as follows, with the exception of the replacement of the following Acts and subordinate statutes, and with the corresponding parts of the first instance judgment.

C. Determination

1) Whether 000 won received by the Plaintiff is a penalty for breach of contract cancellation

In the event there are two or more parties to a contract, the rescission of the contract must be made against all or some of them (Article 547(1) of the Civil Act). Thus, there is no evidence to acknowledge that the rightB jointly purchased the instant real estate with the Plaintiff had expressed its intent to rescind the contract of this case. In addition, if a penalty equivalent to twice the down payment as alleged by the Plaintiff, the person who paid the contract should be the seller, and if the amount of KRW 00,00,00,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

2) Whether the Plaintiff obtained transfer margin

In light of the following circumstances, the Plaintiff’s legal status of 1BB, 2, 3, 4, and 5, the sales contract was concluded between the Plaintiff and the seller, and 2, 204, 3, 4, 2000, 200, 200, 2000, 2000, 200,000, 200,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00,000,00,000,00,000,00,00,00,00.

3. Conclusion

If so, the plaintiff's claim of this case is dismissed due to the lack of reason, and the judgment of the court of first instance is unfair, and the plaintiff's claim is dismissed, and it is so decided as per Disposition.