명의신탁한 부동산의 경우 실제 소유자에게 양도소득세를 과세하여야 함[국패]
Cho High Court Decision 2014Da19737 ( October 27, 2014)
In the case of title trust real estate, capital gains tax should be imposed on the actual owner.
If real estate under title trust is transferred, capital gains tax shall be imposed on the actual owner, and it is unreasonable to impose capital gains tax on the title trustee.
Article 14 of the Framework Act on National Taxes
2015Guhap340 Revocation of Disposition of Imposing capital gains tax
JAA
○ Head of tax office
December 18, 2015
February 5, 2016
1. The Defendant’s disposition of imposition of the capital gains tax of 200 billion won over the Plaintiff on October 2014 is revoked.
2. The costs of lawsuit are assessed against the defendant
Cheong-gu Office
The same shall apply to the order.
1. Details of the disposition;
"A. The land and building located in ○○○○-dong ○○-dong (hereinafter referred to as the "real estate of this case") had each ownership transfer registration under the name of the Plaintiff on January 2, 201, on the ground of sale and purchase from ○ on January 201, 201, and on the ground of sale and purchase from ○○ on October 201, 201, on the ground of the Plaintiff’s name, from ○○○○○○-dong ○○○-dong ○○○ on January 10, 201, on the ground that the Plaintiff did not report the transfer income tax even after the Plaintiff transferred the real estate to ○○○○ on January 2012, 201, the Plaintiff filed an appeal with the Tax Tribunal on January 2014, but was dismissed on January 2014.
[In the absence of a dispute with recognition, each entry in Gap evidence 1 through 4, Eul evidence 1 and 2 (including each number; hereinafter the same shall apply), and the purport of the whole pleadings
2. Whether the instant disposition is lawful
The Plaintiff is not the purchaser of the sales contract on October 201 with regard to the instant real estate. However, the Plaintiff purchased the instant real estate from JinD and his/her married spouse EEE, and completed the registration of ownership transfer in the Plaintiff’s name to obtain a loan from the Plaintiff, and only transferred the instant real estate again to the largestCC. Therefore, the instant disposition based on the premise that the Plaintiff is the actual owner of the instant real estate, and the transferor is unlawful.
B. Relevant statutes
Article 14 (Real Taxation)
(1) If the ownership of the income, profit, property, act or transaction subject to taxation is merely nominal, and a person to whom it actually belongs exists, the tax-related Acts shall apply to such person to whom it actually belongs as a taxpayer.
C. Determination
If a title truster transfers real estate to a third party and income from such transfer was attributed to the title truster under the substance over form principle, the person liable to pay capital gains tax under the substance over form principle is not the title truster who is the subject of the transfer, but the title truster who is the subject of the transfer, becomes the taxpayer (see, e.g., Supreme Court Decisions 96Nu6387, Oct. 10, 197; 98Du7084, Nov. 26, 1999).
The evidence mentioned above and the evidence mentioned in Gap evidence Nos. 5 through 10, witness JD, and YB's testimony are comprehensively considered as a whole, and the real estate of this case is acquired by JD and JE under the name of the plaintiff, which is the title truster, and the taxpayer of the capital gains tax on the income accrued from the transfer of the real estate of this case is the title truster JD and EE who actually controls the income of this case. Thus, the disposition of this case imposing capital gains tax on the plaintiff, which is merely the title trustee, is unlawful.
① On February 18, 201, JD and E concluded a sales contract on the instant real estate with the head of E as the buyer on February 18, 201. However, JD and E concluded that the Plaintiff was not the actual purchaser of the instant real estate due to bad credit standing at the time and thus, they were unable to obtain a loan under their own names, and they completed a registration of ownership transfer on the instant real estate in the name of the Plaintiff, a parent of JD, and obtained a loan from the Plaintiff’s community credit cooperatives under the name of the Plaintiff.
② JD and E purchased apartment in the name of EE, loans from the bank, and DoD’s personal loans from the bank. Interest on loans was borne by DoD and E. As 24 years old, the Plaintiff was not able to acquire the instant real estate as well as did not bear the purchase fund of the instant real estate.
③ JDD and EE resided in the instant real estate along with the EE’s son FF and the Women’s MaF’s Women’s Parental Republic of Korea, and the Plaintiff did not reside in the instant real estate.
④ At the request of the EE, JD transferred the ownership of the instant real estate to the said largestCC, and did not reside in the said real estate. Thereafter, on June 2013, 2013, E and maximumCC sold the instant real estate to the headGG, and the income accrued therefrom did not accrue to the Plaintiff.
3. Conclusion
If so, the plaintiff's claim is justified.