양도소득의 실질적인 귀속자[국패]
Examination transfer 2009-0098 (22)
Persons to whom capital gains substantially accrue;
According to the evidence submitted, it is recognized that the husband transfers the commercial building under the name of the plaintiff, so the actual owner of capital gains is the husband of the plaintiff.
The contents of the decision shall be the same as attached.
1. The Defendant’s imposition of KRW 117,872,800 against the Plaintiff on October 1, 2008 shall be revoked.
2. The litigation costs shall be borne by the defendant.
The same shall apply to the order.
1. Circumstances of the disposition;
A. On July 2, 2002, the chief prosecutor of the ○○ Central District Prosecutors’ Office notified the Defendant that the Plaintiff did not report and pay the transfer income tax in relation to the sale of KRW 440,173,00 on July 23, 200 by selling KRW 279,802 and KRW 116 (hereinafter “instant shopping district”).
B. Accordingly, on October 1, 2008, the Defendant decided and notified the Plaintiff of KRW 117,872,800 in relation to the transfer of the instant commercial building, which was subject to the instant imposition disposition.
[Ground of recognition] Facts without dispute, Gap evidence 7 through 10, Eul evidence 1, the whole purport of the pleading
2. Whether the disposition is lawful;
A. The plaintiff's assertion
The Plaintiff asserts that the Defendant’s disposition of imposition of capital gains in relation to the instant commercial building is unlawful under the substance over form principle, since the Plaintiff is merely the nominal lender and the actual owner of capital gains in relation to the instant commercial building
B. Determination
(1) Article 14(1) of the Framework Act on National Taxes provides that a person to whom a tax is imposed shall be deemed as a taxpayer when the person to whom a tax is imposed is the person to whom the income is attributed, and is the person to whom the income is actually
(2) The Plaintiff’s husband KimCC, on July 2, 2002, sold the instant commercial building under the name of the Plaintiff and transferred it to YA on July 23, 2002. Therefore, the Plaintiff’s disposition of imposing the instant commercial building merely was against the principle of substantial taxation against the Plaintiff’s title holder, (i.e., the actual holder of the transfer income related to the instant commercial building, i.e., KimCC, regardless of whether the actual holder of the transfer income, is KimCC or not).
3. Conclusion
If so, the plaintiff's claim is justified and it is judged the same as the order.