매매행위가 동의 승낙 없이 이루어진 것으로 무효라는 점을 인정하기에 부족하므로, 과세처분은 적법[국승]
Inasmuch as it is insufficient to recognize that the transaction was conducted without consent, taxation disposition is legitimate.
Due to the fact that ownership transfer registration has been completed, barring any special circumstance, it shall be presumed that a legitimate purchase has been acquired, and it is insufficient to recognize that the sale act was invalid as it was conducted without consent. Therefore, the taxation disposition is legitimate.
Article 88 (Definition of Transfer) of Income Tax Act
2014Guhap60680 Revocation of Disposition of Imposing capital gains tax, etc.
EAA
BB Director of the Tax Office
2, 2015.22
November 03, 2015
1. The part concerning the claim for revocation of imposition of local income tax among the instant lawsuit is dismissed.
2. The plaintiff's remaining claims are dismissed.
3. The costs of lawsuit shall be borne by the Plaintiff.
Cheong-gu Office
The Defendant’s imposition of KRW 000 of transfer income tax for the year 2013 on August 27, 2014 against the Plaintiff and the imposition of KRW 000 of transfer income tax for the year 2013 on September 16, 2014, respectively, shall be revoked.
1. Details of the disposition;
A. On June 7, 2013, the Plaintiff purchased shares of 926.5/2,131/2,00 of the OO-O-O (hereinafter “the instant real estate”) from the GoCC and completed the registration of the transfer of ownership on June 25, 2013.
B. After that, on July 18, 2013, the ownership transfer registration under the name of KimD was completed on August 6, 2013 with respect to 33/2,131 shares (the total land standards; hereinafter the same shall apply) in the instant real estate as of July 18, 2013, and on the remaining real estate, the ownership transfer registration under the name of KimE was completed on September 3, 2013 with respect to 132/2,131 shares in the remaining real estate as of August 22, 2013.
C. On August 27, 2014, the Defendant imposed and notified the Plaintiff of KRW 000 (including additional taxes) of the transfer income tax for the year 2013, and KRW 000 of the local income tax for the year 2013, on September 16, 2014, on the ground that the Plaintiff sold part of the instant real estate to KimD and KimE, as seen above, on the grounds that he did not report and pay the said transfer income tax.
D. The Plaintiff, who was dissatisfied with the foregoing taxation, filed an appeal with the Tax Tribunal on April 7, 2015, but dismissed the said appeal.
[Ground of recognition] Facts without dispute, Gap evidence 1 to 3 (including additional numbers), Eul evidence 1, the purport of the whole pleadings
2. Judgment on the main defense of this case
The Defendant asserts that, among the above taxation dispositions against the Plaintiff, an appeal suit seeking revocation of imposition disposition of local income tax against the Plaintiff is unlawful since it is not the Defendant, but the head of the local government having jurisdiction over the Plaintiff’s place of tax payment. As such, the part seeking revocation of imposition disposition of local income tax among the lawsuit in this case
Therefore, according to Articles 85 subparag. 3, 87(1), and 93(1), (2), and (5) of the former Local Tax Act (amended by Act No. 12153, Jan. 1, 2014), local income tax is a local tax that is to be paid to the head of the local government having jurisdiction over the place of tax payment. If the head of the district tax office collects income tax by means of an assessment and notice pursuant to the Framework Act on National Taxes or the Income Tax Act, it shall be deemed that the head of the relevant local government imposes and notifies income tax (the local income tax that is the tax base for the income tax payable) together. Thus, an appeal seeking revocation of imposition of local income tax against the Plaintiff shall be filed against the head of the local government having jurisdiction over the place of tax payment, not against the Defendant, but against the head of the relevant local government having jurisdiction over the place of tax payment. Therefore, the part seeking revocation of imposition of local income tax of KRW 00
3. Whether imposition of capital gains tax is legitimate.
A. The plaintiff's assertion
The Plaintiff acquired the instant real estate through this FF, which is a real estate consulting business entity, and the FF thereafter sold and disposed of a part of the instant real estate to KimD and KimE without permission by using the Plaintiff’s certificate of personal seal impression and abstract of resident registration card after the acquisition of the Plaintiff’s seal imprint, etc. during this process, and then consumed all of the instant real estate for personal purposes, such as business funds, by receiving the purchase price. Therefore, since the said sale becomes null and void, it is unlawful for the Defendant to impose capital gains tax on the Plaintiff on the share subject to the said sale.
B. Determination
Where the registration of ownership transfer is completed with respect to real estate, not only the third party but also the former owner is presumed to have acquired ownership based on legitimate grounds for registration. Thus, the grounds for invalidation should be asserted and proved in the dispute (see, e.g., Supreme Court Decision 2010Da75648, Nov. 10, 201).
Based on the foregoing legal doctrine, as to the instant case’s share of 33/2,131 of the instant real estate owned by the Plaintiff on July 18, 2013, the registration for transfer of ownership in the name of KimD on August 6, 2013, and the registration for transfer of ownership in the name of KimD on August 22, 2013 was completed on September 3, 2013 on the ground of sale as of August 22, 2013, the fact that the registration for transfer of ownership in the name of KimE was completed on September 3, 2013, barring any special circumstance, KimD and KimE are presumed to have acquired each of the instant share lawfully from the Plaintiff, and it is insufficient to recognize that the said sale was null and void on the sole basis of each statement of evidence Nos. 2 through 8 (including serial number). Therefore, the Plaintiff’s assertion on other premise is without merit.
4. Conclusion
Therefore, the part of the lawsuit in this case seeking revocation of imposition of local income tax is unlawful and dismissed, and the remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.