[양도소득세등부과처분취소][공1995.5.15.(992),1899]
A. The case holding that if the plaintiff and the third party divide the land purchase price into anything similar to that of the plaintiff in a case where the plaintiff asserted that the actual owner is a third party, the court should further examine the circumstances and determine whether the disposition of imposition of capital gains tax against the plaintiff is legitimate
(b) Scope of liability to pay income tax on joint-owned property or joint-owned business operators; and
C. Whether Article 34(1) of the Inheritance Tax Act applies to the determination of whether the transfer of funds is a gift or a loan
A. The case holding that, in the case where the plaintiff asserted that the ownership transfer registration has been completed in the name of the plaintiff but the actual owner is a third party, if it is recognized that the land sale price was divided in a similar way between the plaintiff and his third party, the court should further examine its circumstances, etc. and determine whether it is reasonable to divide between the plaintiff and the third party or to divide between the plaintiff and the third party, and then it should be determined whether the disposition of imposition, such as the transfer income tax, against the plaintiff is legitimate.
B. As the provisions of Articles 2(1) and 56 of the former Income Tax Act (amended by Act No. 4803 of Dec. 22, 1994), which provide special provisions for the income tax as to the jointly-owned or joint-owned property, are preferentially applied pursuant to the proviso of Article 3(1) of the Framework Act on National Taxes, Article 25 of the same Act, which provides for special provisions, applies to the income tax as to the jointly-owned property or joint-owned property, among the national taxes related to the jointly-owned property or joint-owned property, each co-owner or joint-owned business owner is liable to pay the income tax on the income
C. The provision of Article 34(1) of the Inheritance Tax Act is merely a provision that considers the transfer of property by spouse, etc. as a donation, and it does not apply to the case where the issue is whether the transfer of property is due to the loan or loan.
(a) Article 7(1) of the former Income Tax Act, Article 14(1) of the Framework Act on National Taxes; Articles 2(1) and 56 of the Income Tax Act; Article 25 of the Framework Act on National Taxes and the proviso to Article 3(1) of the Framework Act on National Taxes;
[Defendant-Appellee] Plaintiff 1 and 2 others
the director of the tax office
Seoul High Court Decision 92Gu2839 delivered on September 28, 1994
The part of the lower judgment against the Plaintiff regarding the disposition imposing capital gains tax, etc. is reversed, and that part of the case is remanded to Seoul High Court.
The remaining appeals by the plaintiff are dismissed, and all costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
(1) As to the imposition disposition of transfer income tax
According to the reasoning of the judgment below, the court below acknowledged that around May 27, 1986, Nonparty 1, the former owner and seller of the land of this case, received KRW 100 million from the Plaintiff as the sale price of the land of this case and issued receipts in the Plaintiff’s name. Of KRW 650,000,000 for the non-party company of this case’s land, KRW 339,20,000 for the non-party company of this case’s purchase price of KRW 650,000 for the non-party company of this case’s mother was deposited in the old account of Non-party 2’s wife at that time, and KRW 275,80,000 for the non-party 3’s wife at that time. In full view of all circumstances, the court below determined that the Plaintiff’s assertion that the non-party 3 of this case’s land of this case was not the actual owner of the land of this case, and that more than half of the purchase price of the Plaintiff and its mother was deposited.
However, according to the evidence No. 4 evidence cited by the court below, the above non-party 1 transferred the land of this case to the above non-party 3, an attorney-at-law and the litigation cost to be paid to the above non-party 12, and according to the evidence No. 12, the above non-party 3 paid 349,200,000 won out of the sale price of the land of this case to the plaintiff as a settlement of accounts for the money invested by the plaintiff. According to the above facts acknowledged by the court below, the sale price for the non-party company of this case was similar to what the plaintiff and the non-party 3 alleged to be the actual owner. Thus, the court below determined the legitimacy of the disposition imposing the transfer income tax of this case after further examining the circumstances, etc., and confirmed whether it is reasonable to share between the plaintiff and the non-party 3 or both persons.
In light of the fact that part of the house purchase price has been deposited to the above non-party 3, even if the plaintiff and the above non-party 3 considered to have acquired the land of this case and sold it and settled the price, the court below judged that the plaintiff still has the obligation to pay the house purchase price for the land of this case since there are joint and several tax liability under Article 25 of the Framework Act on National Taxes stipulating the joint and several tax liability for the joint and several property belonging to joint and several businesses. The proviso of Article 3(1) of the Framework Act on National Taxes applies in preference to the tax law, but some provisions including Article 25 of the Framework Act on National Taxes provide special provisions in each tax law, and the income tax (real estate income, business income, capital income, or forestry income) on the joint and several property or joint business shall be imposed on each resident according to the share or the ratio of sharing of profits and losses. Thus, the above provision of the Income Tax Act, which is the special provisions on the joint and several businesses or joint business, shall be applied to each joint and several owner or joint business.
Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the burden of capital gains tax in violation of the rules of evidence, the lack of reasons, the principle of substantial taxation, and the sharing relationship.
(2) As to the disposition imposing gift tax
In light of the records, it is difficult for the court below to find that the plaintiff was donated money from the non-party 4, and there is an error of violation of the rules of evidence such as theory of lawsuit.
In the process leading to the above conclusion, the court below stated that the transfer of funds from the above non-party 4 to the plaintiff is deemed a donation pursuant to Article 34 (1) of the Inheritance Tax Act, but the above provision is merely a provision regarding the transfer of funds by the spouse, etc. as donation, and it is not appropriate to apply to this case as the issue is whether the transfer of funds is due to the loan or not. However, it is necessary to prove that the transfer of funds in this case is due to the loan, and the result of the judgment of the court below that it is insufficient to prove that the transfer of funds in this case is due to the loan is correct. Thus, the above inappropriate statement of the court below does not affect
There is no reason to discuss.
(3) Therefore, the part of the judgment of the court below regarding the claim for revocation of the disposition imposing capital gains tax, etc. is reversed, and this part of the case is remanded to the court below. The remaining appeal by the plaintiff is dismissed, and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by
Justices Lee Don-hee (Presiding Justice)