(영문) 서울행정법원 2011. 12. 28. 선고 2010구단24695 판결양도토지는 제3자가 명의신탁한 것으로 양도소득은 제3자에게 귀속됨[일부패소]
Seocho 2010west 1667 (Law No. 12, 2010)
The transferred land is a nominal trust by a third party, and the transfer income belongs to the third party.
The transfer land is a trust of a third party, and the transfer income is also attributed to a third party. Therefore, under the substance over form principle, a taxpayer of the relevant transfer income is a third party who is the subject of the transfer, and even if a part of the transfer price was not paid, it cannot be concluded that a claim is impossible to recover. Thus, the disposition not deducted from the two values is lawful.
2010Gudan24695 Revocation of Disposition of Imposing capital gains tax
KimA
The Director of the Pacific District Office
November 30, 2011
December 28, 2011
1. The part of the Defendant’s disposition imposing KRW 209, 005, and 130, imposed on the Plaintiff on November 1, 2009, which exceeds KRW 183,623, and 137, shall be revoked.
2. The plaintiff's remaining claims are dismissed.
3. 9/10 of the costs of lawsuit shall be limited to the plaintiff, and the remainder shall be limited to the defendant.
The Defendant’s disposition of imposition of KRW 209,005,130 on November 1, 2009 against the Plaintiff shall be revoked.
1. Details of the disposition;
A. On February 28, 2007, the Plaintiff transferred 11,427 square meters of 11,427 square meters of O00-00 forest 11,427 square meters to ParkCC (hereinafter “instant land”). On March 12, 2007, the Plaintiff transferred OO-dong 0000-0 site and its ground buildings (hereinafter “the instant housing”) to NAD on March 12, 2007.
B. On May 31, 2008, the Plaintiff reported the transfer income tax of 60,00,000, acquisition value of the instant land of 19,723,320, and the transfer value of the instant housing of 650,00,000, the acquisition value of the instant land of 611,686,460, and the acquisition value of the instant housing of 650,000, the transfer value of the instant housing of 611,686, and 778, but did not pay the transfer income tax.
C. On November 1, 2009, the Defendant investigated the details of the Plaintiff’s report of capital gains tax and confirmed that the acquisition price of the instant housing was 399,850,000,000, and calculated capital gains tax based thereon, and issued the instant disposition imposing KRW 209,005,130 for the Plaintiff on November 1, 2009.
[Ground of Recognition] Facts without dispute, Gap evidence 1, 2, 8, 15 (including paper numbers; hereinafter the same shall apply), Eul evidence 1, 2, and 5
2. Whether the instant disposition is lawful
A. The plaintiff's assertion
(1) The instant disposition imposing capital gains tax on the transfer margin of the instant land is unlawful, since both E and E were purchased by lending the Plaintiff’s name, not the Plaintiff’s ownership, and the transfer proceeds were consumed by both E and E upon receipt of the transfer margin.
(2) The Plaintiff transferred the instant house to bothE in KRW 50 million, and bothE have transferred KRW 650 million again to NA in KRW 650 million, so the actual transfer value of the instant house is KRW 550 million and the instant disposition otherwise reported is unlawful.
(3) Of the transfer price of the instant housing, the Plaintiff was only 350 million won for the purchase price of the instant housing, which was set up a collateral security of KRW 350 million for the land and buildings owned by YangE’s ASEAN, but did not receive the payment. The Plaintiff was paid the amount of KRW 20 million for the said collateral security through an auction. As such, the remaining KRW 330 million should be deducted from the transfer price of the instant housing, and the instant disposition that was otherwise reported is unlawful.
B. Determination
(1) First, we examine the assertion that the actual owner of the instant land is both EE and not the Plaintiff.
In light of the purport of the Plaintiff’s argument in Gap’s evidence Nos. 9, 14, 18, and 19, the Plaintiff filed a lawsuit seeking ownership transfer registration and the return of the purchase price (Law No. 2008, 1237) on the premise that the land of 6 lots, including O00-00-00 square meters, in Suwon-dong, Nam-dong, and 354 square meters, was trusted to NaG as one’s own ownership. The court dismissed the Plaintiff’s claim on August 20, 2009 on the ground that the above land was purchased under the name of the Plaintiff, etc., and that the above judgment became final and conclusive, and that the Plaintiff transferred 200-0-0 shares of 00,000 forest land to NaG under the name of 50-1,000,0000,0000 of 200,0000,0000,000.
(2) Next, we examine the assertion that the actual transfer value of the instant house is KRW 550 million and KRW 00 million.
As seen earlier, the Plaintiff reported the transfer income tax with the transfer value of KRW 650 million as well as KRW 650,000,000,000,000,000 for the transfer value of the instant house in the name of the Plaintiff and WonD, and according to the Plaintiff’s certificate No. 4, the sales contract on the instant house in the name of the Plaintiff and WonD was deemed to have been written with the purchase price of KRW 650,000,000,000. However, there is no evidence to acknowledge that the transfer value of the instant house is KRW
(3) We examine the plaintiff's assertion that 00,000,000 won should be deducted from the transfer value of 00,000,000 (20,000,000,000) 20,000,000,000 won (20,0000,0000,000,000) were 0,000,000,000,000,0000,000,0000,0000,0000,0000,000,0000,0000,000,000,0000,000,000,0000,000,000,000,000,000,000,000,000,000,000,00,002) were 06,06,000.
(4) If so, the part concerning the transfer income tax on the transfer of the instant land among the dispositions of this case is unlawful, and thus the transfer income tax on the transfer of the instant land is lawful and should be maintained as it is. Accordingly, the transfer income tax on the transfer of the instant land is calculated as follows: 183,623, and 137 as stated in the separate calculation column.
3. Conclusion
Therefore, the part of the disposition of this case in excess of 183,623,137 won should be revoked illegally. Thus, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.