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

A. Nonparty 1, the husband of the Plaintiff, as indicated in the separate sheet from ○○○ (hereinafter referred to as “○○○”). On May 13, 200, Nonparty 1, the husband of the Plaintiff, completed the registration of ownership transfer by purchasing each of 153 of the instant commercial buildings on August 28, 200, 205, 205, 205, and 26, respectively (hereinafter referred to as “first sale”), and completing the registration of ownership transfer on September 4, 200 (hereinafter referred to as “the instant 29 commercial buildings”).

B. On September 20, 2003, the non-party 2, who is a creditor of ○○○ and a mortgagee, filed an application for voluntary auction, and rendered a voluntary decision to commence the auction of the instant real estate (Seoul Eastern District Court 2003ta District Court 12797). Accordingly, the voluntary auction procedure (hereinafter referred to as “instant auction”) was conducted.

다. 소외 1은 이 사건 경매절차가 진행 중이던 2006. 9. 12. 및 같은 달 15. 주식회사 ㅁㅁ ( 이하 ' □ ' 라 한다 ) 에게 이 사건 부동산을 합계 1억 5, 000만 원에 매도 ( 이하 ' 제2매매 ' 라 한다 ) 하고 소유권이전등기를 마쳐주었으며, 2006. 11. 15. 양도소득세 예정신고를 하였다 .

D. After that, on September 15, 2009, Nonparty 3 and Nonparty 4 sold the instant shopping district underground 102 at the instant auction procedure and completed the registration of ownership transfer, and △△△△ Co., Ltd. (hereinafter referred to as “△△△”). < Amended by Act No. 1010, Sep. 15, 2009>

7. 14. Of the instant real estate, the remaining commercial buildings except subparagraph 102 above were sold and completed the registration of ownership transfer, and the registration of ownership transfer in the name of △△ on the same day was cancelled ex officio.

Meanwhile, Nonparty 1 died on November 4, 2010, and the Plaintiff succeeded to Nonparty 1’s property.

E. On January 30, 2013, the Defendant imposed KRW 98,504,980 (hereinafter “instant disposition”) on the Plaintiff, the heir of Nonparty 1, pursuant to Article 24(1) of the Framework Act on National Taxes, within the scope of the property inherited to the Plaintiff, the heir of Nonparty 1, pursuant to Article 24(1) of the Framework Act on National Taxes (hereinafter “instant disposition”).

F. The Plaintiff appealed and filed an objection on February 20, 2013, but the Defendant, on March 28, 2013, rendered a decision to dismiss the objection, and on May 13, 2013, the Tax Tribunal again filed a request for a trial on September 16, 2013.

【Uncontentious facts, Gap’s evidence 1 through 5, Eul’s evidence 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The Plaintiff’s assertion 1) Nonparty 1 sold the instant real estate to △△△ and completed the registration of transfer of ownership during the instant auction procedure. Accordingly, the person liable to pay capital gains tax following the sale of the instant real estate is not Nonparty 1, the owner at the time of the decision to commence the auction, but theO that effectively purchased the instant real estate from him. The same applies even if the registration of transfer of ownership in △△△ was ex officio by sale.

2) In light of the fact that the sales price for the second sale is remarkably low due to the fact that the real estate in the process of the auction procedure was the real estate in question, and Nonparty 1 did not fully use and take profit from the instant real estate after the second sale, while △△ did actually use and take profit from the real estate after paying the acquisition tax and registration tax for the instant real estate, it cannot be deemed that the second sale and purchase was a false declaration in conspiracy.

(b) Related statutes;

It is as shown in the attached Table related Acts and subordinate statutes.

(c) Fact of recognition;

1) On August 25, 200, between Nonparty 5 and Nonparty 5 on August 25, 2000, the deposit amount of KRW 972,00,000, and the period of KRW 00 for the remaining real estate except subparagraph 102 of the instant commercial building among the instant real estate.

B. From August 24, 2003, a lease agreement was concluded with the content that is to extend automatically every three years when no objection is raised by both parties.

2) △△ was established on August 16, 2001, and from December 19, 2003, 201, the amount of Nos. 201, 203, 226 through 238, 262 through 271 among the instant commercial buildings was set at KRW 305,00,00.

3) Article 7 of the contract for the second sale of the real estate concluded between Non-party 1 and △△ is exempt from liability to Non-party 1 with respect to defective matters such as senior mortgage and decision on voluntary commencement of sale of the real estate. In relation to the preceding paragraph, △△ has stated that △△ shall actively cooperate with Non-party 1 so that the defective matters may be cancelled. (No. 2 evidence No. 2) KRW 150,000,000 as the standard market price of the real estate of this case at the time of entering into the contract, KRW 4,769,641,00 won, and KRW 3.2%, which is the proceeds of the sale of the real estate of this case at the auction procedure of this case, KRW 1,388, 418, 437 won, and KRW 8.8%,000,0000,000 for the real estate of this case, and KRW 30,000,000 for the real estate of this case.

6) Also, from October 2006 to Nonparty 6, △△ reported part of the instant real estate and value-added tax. From October 2006 to June 2007, the lease income was KRW 130,500,000,000 from October 2006 to June 2007, and the business attitude of Nonparty 6, which was entered as the recipient of the tax invoice issued by △△, is called “services” and the category of the service.

【Uncontentious facts, Gap’s evidence Nos. 1, 2, 6 through 10, Eul’s evidence Nos. 4, 6 and 9 (including each number), and the purport of the whole pleadings

D. Determination

1) In cases where an auction real estate is transferred during the auction procedure, whether the original owner (the transferor) is a person liable to pay capital gains tax due to auction

The effect of attachment due to the registration of entry of a real estate shall be limited to the restriction of disposal of the real estate in relation to the owner of the real estate, and since the disposal of the real estate is not prohibited even in relation to other third parties, the owner of the real estate may dispose the real estate for the purpose of acquiring the ownership of the real estate in full in the auction procedure even before the successful bidder pays the successful bid price, and the person who acquired the ownership of the real estate due to such disposal can thereafter become an interested party in the auction procedure by proving that he/she acquired the real estate thereafter and then can become an interested party in the auction procedure, and in cases where there is surplus after dividends, he/she shall have the right to return the real estate as an owner of the real estate. In addition, since the transfer income tax is subject to taxation of the income accrued from the transfer of the real estate prescribed as the object of transfer under the Income Tax Act, if the owner of the real estate donates the real estate to a third party during the auction procedure and the profits accrued from the subsequent auction belongs to the donee, the transfer income tax can not be imposed on the above auction.

Considering the above facts in light of the legal principles as seen earlier, if Nonparty 1, the owner of the instant real estate, during the auction procedure following the seizure of the registration for entering a request for auction, transferred the instant real estate to △△△, and gains accrued from auction thereafter, the gains accrued therefrom shall belong to △, the transferee, and therefore, the transfer income tax from the said auction shall be borne by △△, not Nonparty 1, who acquired the ownership thereof.

Therefore, it is reasonable to see that the Plaintiff’s assertion on this part is reasonable. Therefore, whether the second sale is invalid as a false conspiracy with a false representation

In light of the following circumstances, since the Defendant asserts that the second trade between Nonparty 1 and △△ constitutes a false conspiracy, it is insufficient to recognize the fact that Nonparty 1 conspired with △ for the purpose of reducing the transfer income tax pursuant to the auction of this case unfairly, and there is no other evidence to recognize it. Therefore, the Defendant’s assertion that the second trade is invalid as a false conspiracy, is without merit, in light of the following circumstances, by itself, the statement of evidence Nos. 2 through 9 (including each number) is insufficient to acknowledge the fact that Nonparty 1 conspired with △ for the purpose of reducing the transfer income tax pursuant to the auction of this case.

1. ① There is no evidence to find the fact that there is a special relationship between Nonparty 1 and the buyer’s representative and the buyer’s third party’s representative with the intention of creating a false appearance of the second sale. There is no circumstance to deem that Nonparty 1, the seller, or the Plaintiff, the wife, still exercised the right as the owner, such as the use and profit-making of the instant real estate even after the second sale. Rather, △△, the buyer, paid the registration tax on the instant real estate, and thereafter, exercised the ownership by leasing the instant real estate and paying taxes therefrom.

③ At the time of the second sale, Nonparty 1 and insurance company had completed the registration of seizure following the decision on commencement of auction on the instant real estate at the time of the second sale, and anticipated that there was little surplus to be distributed to owners due to the existence of senior security rights, and determined the purchase price at an extremely lower amount than the market price.

④ An auction procedure was conducted on 95 commercial buildings including the instant real estate, and there were interested parties, such as multiple mortgagees, lessees, and seizure right holders. Accordingly, around September 2003, around 6-7 years passed from the issuance of a decision to commence auction on the instant real estate and until the completion of ownership transfer registration due to sale.

⑤ From December 203, 2003, which was far earlier than Nonparty 1 and Nonparty 1 entered into the second sales contract, it appears that the aforementioned circumstances were well-known. Therefore, in light of the degree of the progress of the instant auction procedure, △△ may enter into the second sales contract for the purpose of obtaining rent profit during that period, even if there was a risk that the sale of the instant real estate may take a considerable time, and thus, the instant real estate was sold after about 3 to 4 years from the date of the second sales contract.

④ Since acquiring the ownership of the instant real estate on September 2006, around October 2006, the △△△△ leased part of the ownership to Nonparty 6, and Nonparty 6 used it as a wedding hall. In addition, the O reported KRW 135 million as the rental income for about 8 months from October 2006 to June 2007, the O reported KRW 15 million. This is a significant amount adjacent to the purchase price under the second sales contract.

7) Even if Nonparty 1 had the intent or motive to avoid capital gains tax on the fact that Nonparty 1 entered into the second sale with Nonparty 1, it cannot be readily concluded that the second sale is null and void as a false conspiracy, as long as Nonparty 1 and △△ agreed with the intention to transfer the ownership of the instant real estate and to exercise the ownership of the instant real estate.

④ Even upon the decision of the Tax Tribunal, it is difficult to see that the first trade that Nonparty 1 transferred ownership from ○○ to ○○ and the second trade that Nonparty 1 again purchased and sold to ○○○ is believed to have been false as it does not have any falsity. 3) theory of lawsuit.

Therefore, since the second sale of real estate does not constitute a false conspiracy, it is reasonable to view that the person liable to pay capital gains tax following the sale of the real estate of this case is the purchaser of the real estate as the purchaser. Nevertheless, the Defendant’s disposition imposing capital gains tax on the Plaintiff is unlawful

3. Conclusion

Therefore, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

Judges Doese defect

Judges Kim fixed-term

A person shall be appointed.