[양도소득세등부과처분취소][집38(3)특,249;공1990.12.1.(885),2315]
The case holding that a transaction with a corporation under Article 170 (4) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989), which stipulates that the transfer margin shall be calculated based on the actual transaction value where a registration of ownership transfer was made based on a trust under the Trust Act instead of a corporation whose name is the actual purchaser and the representative director is the actual purchaser, constitutes a transaction with a
Article 170 (4) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) which provides one of the actual transaction values in calculating transfer margin shall be deemed to be a juristic person. The contracting party to the contract shall not simply depend on the name of the contracting party, but shall comprehensively consider the actual contents of the contract such as the party's intention or the actual contributor of the purchase price, etc. under the substance over form principle. In order to avoid the plaintiff's burden of transfer income tax based on the actual transaction value, the contracting party to the contract of this case entered into a sales contract under the name of the contracting party, the representative director of the company, instead of the contracting party, and received the total purchase price from the company A on the day of the transaction. If the transfer registration of ownership was completed in the future of the company A due to the trust law with the purchase of the funds entrusted by the company A, but later the transfer registration was completed due to the reversion of trust property, the court below did not err in the misapprehension of legal principles.
Articles 23 and 45 of the Income Tax Act, Article 170 (4) 1 of the former Enforcement Decree of the Income Tax Act
Attorney Kim J-jin et al., Counsel for the defendant-appellant
Head of Ansan Tax Office
Seoul High Court Decision 89Gu2006 delivered on January 19, 1990
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
Article 170 (4) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 12767 of Aug. 1, 1989) which applies to this case is one of the cases where the actual transaction price at the time of transfer or acquisition is confirmed in transaction with a corporation. In this context, the term "transaction with a corporation" refers to a party to the transfer or takeover contract as a corporation, and the parties to the contract should be determined by comprehensively taking into account the actual contents of the contract such as the party's intention or actual contributor of the purchase price, etc. under the substance over form principle, not merely depends on the name of the contract but rather on the contract.
In full view of the evidence adopted by the court below, the plaintiff purchased the land of this case at KRW 80,80,000 on a usual basis, and the plaintiff tried to purchase the land of this case to use it as a parking lot site, but the plaintiff sold it to the above company to avoid the actual transaction price. Therefore, the purchaser of this case under the sales contract is the representative director of the above company to avoid this. In the registration procedure, the court below decided to complete the registration of ownership transfer under the Trust Act with the purport that the above right to purchase the land of this case from the above company as a trust fund under the Trust Act as the ground for registration. The sale contract for the plaintiff to purchase the land of this case was made on July 222, 1987 and the full amount of the purchase price on that day was made from the above company, and the registration of ownership transfer was made as the trustee of the above company on August 14, 198, and the court below did not err in the misapprehension of legal principles as to the facts that the above right to purchase the land of this case was in violation of trust law.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Yong-dong (Presiding Justice)