The contents of the judgment are the same as attachment.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s imposition of capital gains tax of KRW 90,405,920 against the Plaintiff on January 2, 2018 shall be revoked.

A. On October 15, 200, the Plaintiff acquired OO apartment 590 OO apartment O00O2 (hereinafter “instant apartment”) and transferred the purchase price of 490,000,000 won on January 20, 2017, and did not report the transfer income tax.

B. At the time of the Plaintiff’s transfer of the instant apartment, the Defendant deemed that the Plaintiff’s spouse, a member of the same household, owned the OCC 23-4, and 23-12 multi-household housing (hereinafter “instant building”) for the first floor of the 1st floor (hereinafter “instant apartment house”) at OO-si, and determined and notified the Plaintiff of KRW 90,405,920, capital gains tax for the transfer of the instant apartment (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 8, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Summary of the plaintiff's assertion

CCC’s erroneous DD was registered under the name of CCC in the name of CCC with respect to the bad credit, and operated an internal construction company, such as Changho, etc. (hereinafter “CCC”). The owner of the building of this case contracted new construction works to FF, and FF subcontracted construction, such as Changho, to GG, and DD acquired the housing of this case as payment in lieu of the construction price even after completion of sub-subcontracts from GG, and it was only registered under the name of CCC, the title holder of the instant company. Therefore, CCC’s registration in the name of CCC on the housing of this case is null and void due to a title trust between three parties, and thus, CCC cannot be deemed to have acquired the ownership of the housing of this case. Nevertheless, the disposition of this case is unlawful on the premise that CCC owned the housing of this case and imposed the capital gains tax on the Plaintiff on the owner of the housing of this case on the premise that the Plaintiff was the owner of the housing of this case.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Relevant legal principles

A) In light of the principle of no taxation without law, or the requirements for tax exemption or tax exemption, the interpretation of tax laws shall be interpreted as the text of the law, barring special circumstances, and it shall not be extensively interpreted or analogically interpreted without reasonable grounds. In particular, it would be consistent with the principle of fair taxation to strictly interpret the provisions that can be seen as clearly preferential provisions among the requirements for tax exemption or exemption (see Supreme Court Decision 97Nu20090, Mar. 27, 1998).

B) Article 89(1) of the Income Tax Act provides that capital gains tax shall not be levied on a case where a household owns one house and transfers a house meeting the requirements prescribed by the Presidential Decree. This provision is exceptionally applicable to cases where one household transfers a house owned in the Republic of Korea to ensure the stability of the people’s residential life and the freedom of their residence, and where it can be deemed that the transfer of a house owned in the Republic of Korea by one household is not a transfer of a house for the purpose of acquiring capital gains tax or temporarily residing or owning it for speculation, and thus, it is an exceptional provision for not imposing income tax on such capital gains. Thus, whether

regardless of whether each house is controlled and managed, it shall be determined by whether it is in a position to dispose of it and can be the subject of income attribution from the disposal (see Supreme Court Decision 2016Du43091, Oct. 27, 2016).

C) Meanwhile, Article 4(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name provides that “the title trust agreement shall be null and void.” Article 4(2) provides that “The change of real rights to real estate made by the registration under the title trust agreement shall be null and void.” Provided, That this shall not apply where the title trustee becomes the party to a contract to acquire the real right to real estate and the other party was unaware of the existence of the title trust agreement.” Therefore, if the title truster and the title trustee entered into a contract on the acquisition of real estate with the owner who was unaware of the fact that the title trust agreement was concluded between the title truster and the title trustee and completed the registration of ownership transfer under the title trust agreement between the title truster and the title trustee, notwithstanding the invalidity of the title trust agreement, the title truster would be entitled to acquire the full ownership of the relevant real estate, and the title truster would lose the right to dispose of the relevant real estate and seek unjust enrichment against the title trustee (see Supreme Court Decision 2007Da90432, Oct. 14, 2010).

D) Therefore, it is reasonable to view that one household under the Income Tax Act owns the above title trust house in such a case, since the title trustee, who is a member of the household, has acquired the complete ownership of the said title trust house when the title trustee entered into a sales contract for the house with the owner who was unaware of the fact that the said household member was a title trust agreement.

2) According to the following facts, Gap evidence 2 to 4, 10 (including paper numbers), Eul evidence 2, witness GG testimony and the purport of the entire pleadings, the following facts are recognized.

A) On August 1, 2011, CCC completed business registration with respect to the instant company, and paid comprehensive income tax due to the operation of the instant company.

B) On May 9, 2012, FF, upon receipt of a contract for new construction works from the owner EE of the instant building, agreed to pay the construction cost in lieu of the instant building upon entering into a subcontract by setting the construction cost of KRW 215,00,000 for the creative construction of the instant building, and the Miscellaneous, with the construction cost of KRW 215,00,000. On October 31, 2012, GG re-subcontracted part of the interior construction of the instant building to the instant company (the total construction cost of the instant building is indicated in the contract as KRW 139,300,000).

C) After the completion of the instant building, the Plaintiff agreed to repay the instant building as a substitute, and the seal of the instant company is affixed to the contract prepared at the time.

C) The registration of ownership preservation in the name of EE was completed on June 27, 2013 regarding the instant housing, and the registration of ownership transfer in the name of CCC was completed on April 20, 2013 on August 9, 2013.

D) GG appears in this court as a witness, and “AG transferred the ownership of the instant house to the instant company by payment in substitutes, as it did not sell the building price to the instant company by selling the instant building in lots. It was possible to make payment in kind to a person designated within the building according to a contract with the owner of the building, and DD transferred the ownership of the instant house to CCC. Since there are inevitable circumstances where DD cannot register the ownership transfer under the name of DD and CCC, it testified to the purport that “AG was registered the ownership transfer under the name of CCC according to a title trust agreement between DD and CCC”.

3) As long as the above facts and the purport of the testimony of the CCC were added, i.e., the ownership transfer registration of the instant house was transferred to the instant company instead of the construction cost to be repaid to the instant company, and as such, the ownership transfer registration was immediately completed due to the sale between the owner of the instant house and the CCC, and ii) even if DG had actually operated the instant company under the name of CCC as alleged by the Plaintiff, it seems that the GG had been unaware of the ownership transfer registration regarding the instant house under the name of CCC (see, e.g., Supreme Court Decision 200Da146, supra, it appears that the Plaintiff had no knowledge of the ownership transfer registration regarding the instant house under the name of the CCC, and that it was reasonable to view that the instant company’s actual business owner had no knowledge of the ownership transfer registration regarding the instant building, and that it was difficult to view that the GG had no knowledge of the ownership transfer registration regarding the instant building under the name of the CCC and its actual owner.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.