등기부상 명의신탁해지가 대물변제에 의한 양도에 해당되는지 여부[국승]
Whether the termination of title trust on the registry falls under a transfer by an accord and satisfaction
In light of the fact that there is no agreement on payment in kind or a settlement statement, which appears to have been prepared between the plaintiff and Kim 00 at the time of completing the registration of ownership transfer on the instant shares due to the termination of title trust, the fact alone is insufficient to recognize that the plaintiff would have acquired the instant shares for a fee, and there is no evidence to acknowledge
Article 88 (Definition of Transfer) of Income Tax Act
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s disposition of imposition of capital gains tax of KRW 113,09,100 for the Plaintiff on July 5, 2006 shall be revoked.
1. Details of the disposition;
A. On March 8, 1988, the Plaintiff purchased 00:00 Do 000-0 factory site from Kim00 and completed the registration of ownership transfer on December 12, 1990 and 1/2 shares of the above land, respectively, on the ground that the ownership transfer registration was completed on March 17, 1995 with respect to 1/2 shares owned by Kim0 on the instant land (hereinafter “case shares”) in the name of the Plaintiff on the ground that the title trust was terminated, and on December 16, 2005, sold the instant land to 00 Dock on December 16, 2005.
B. On January 5, 2006, the Plaintiff acquired on March 17, 1995 with respect to the instant shares; on March 8, 1988, with respect to the remaining one-half shares, the scheduled return of capital gains tax was made at the time of acquisition on March 8, 198, which is the date of the delivery of the remaining purchase; and on this, the Plaintiff voluntarily issued capital gains tax accordingly; on July 5, 2006, the Defendant (hereinafter referred to as the “instant disposition”); and on March 17, 1995, the Plaintiff completed the registration of transfer of ownership on the ground of the title trust termination with respect to the instant shares; accordingly, on the ground that the actual time of acquisition of the instant shares and the remaining shares are also March 8, 198, the Plaintiff additionally imposed capital gains tax of 113,009,100 won belonging to the year 205 (hereinafter referred to as the “instant disposition”).
[Ground of recognition] Facts without dispute, Gap 1,4,7 evidence (including provisional number), Eul 1,2 evidence, the purport of the whole pleadings
2. Whether the disposition is lawful;
A. The plaintiff's assertion
The Plaintiff asserts that the disposition of this case, which calculated capital gains tax on March 8, 198, is unlawful, because it acquired the shares of this case on March 17, 1995 due to the following circumstances.
In other words, on July 28, 1987, the Plaintiff shared with Kim 00 who had worked for the same company, purchased the instant land in 199,687,50 won, and established a company with Kim 00 on its ground that it managed the said company under its own responsibility. In the process, the Plaintiff lent factory operation funds over several times to Kim 00, and around May 26, 1991, Kim 00 decided to transfer the Plaintiff’s share in the instant land if it is not returned. After Kim 175,00, Kim 175,000,000 won, such as loans, etc., were returned to the Plaintiff, but if it is not returned, the Plaintiff transferred its share in the instant land to 19,687,50 won, and the Plaintiff transferred its share in the loans from 00,000 Textiles with its major shareholder to 300,000,0000,0000,000 shares in the loans, etc. after offsetting the Plaintiff’s claim against the above 000.
B. Relevant statutes
It is as shown in the attached Form.
(c) Fact of recognition;
(1) At the time of March 8, 1988, the Plaintiff purchased the instant land from 19,687,500 to 199,687,50 in a joint name with Kim 00, who had worked together in 00 Textiles industry 00 companies, and thereafter Kim 00 set aside a company of 00 Textiles industry and managed 00 fibers at the factory above the instant land.
(2) On May 26, 1991, Kim 00, borrowed KRW 300,000 from the Plaintiff, and agreed between the Plaintiff and the Plaintiff on May 26, 199, that “A deposit for unpaid lease of KRW 120,00,000 which was leased from the Plaintiff on the instant land of KRW 120,50,000,000 and the loan of KRW 375,00,000,000, in prompt time, shall be returned to the Plaintiff, but if a future insolvency situation occurs, the instant share shall be waived.”
(3) On January 1, 1992, Kim 00 entered into a comprehensive transfer contract of business rights with the purport that the Plaintiff would be paid in cash the total amount of 341,946,133 won, which is the amount obtained by subtracting total liabilities from total amount of assets on the current account books, on December 31, 1991, on the transfer of all the rights and obligations with respect to the business of 00 Textiles that the Plaintiff had a certain share, and that the Plaintiff would be paid in cash.
[Reasons for Recognition] Each entry of Gap evidence Nos. 3 through 6, and 8 (including each number), the purpose of the whole pleading
D. Determination
(1) Article 88 (1) of the Income Tax Act provides that "transfer" means that an asset is actually transferred for price by means of sale, exchange, investment in kind in a corporation, etc. without relation to the registration or enrollment of the asset. The return of title trust or title trust registration itself does not constitute a transfer under the Income Tax Act, since it does not constitute a compensatory transfer (see, e.g., Supreme Court Decision 93Nu23541, Sept. 9, 1994).
(2) On March 17, 1995, it is recognized that the Plaintiff completed the registration of ownership transfer for the shares in this case among the land in this case on March 17, 1995. Thus, the Plaintiff has the burden of proving that the Plaintiff completed the registration of ownership transfer for the shares in this case on March 17, 1995.
(3) Therefore, according to the Plaintiff’s assertion on this point, the Plaintiff acquired the instant equity interest from Kim00 due to a payment in lieu of claims, such as a set-off against the Plaintiff’s claim for 00 Textiles’s claim for business right transfer and a loan against Kim 00. According to the facts acknowledged earlier, the Plaintiff’s claim for business right transfer against 00 Textiles’s claim for business right transfer against 341,946,133, while the Plaintiff’s claim for business right transfer against 175,00,000 won was not exceeded KRW 175,00,000, and it appears that the Plaintiff itself was unaware of the total amount of claims, such as a loan to Kim 00 at the time of the set-off on the above claim. In light of the fact that there was no agreement for payment in kind or settlement that the Plaintiff would have to have been prepared between the Plaintiff and Kim 00 at the time of completing the registration of ownership transfer on the instant equity interest due to the title trust, there is insufficient evidence to acknowledge it otherwise.
(4) Therefore, the disposition of this case that calculated capital gains tax by considering the time of acquisition on March 8, 198 as the time of acquisition on March 17, 1995, which the plaintiff acquired the shares of this case due to the cancellation of title trust, is lawful, and the plaintiff's assertion disputing this is without merit.
3. Conclusion
Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.