1. According to the reasoning of the judgment below, on July 18, 1980, the plaintiff sold 100 square meters of 513 square meters from the land of Seo-gu, Busan, which is its ownership to the non-party who is the construction business operator, for 48,00,000 won, and the non-party constructed and sold 20 apartment houses on that ground, but for convenience, the construction permit name and the registration name of apartment houses shall be registered in the name of the plaintiff and the land shall be completed, and the non-party agreed to transfer the house directly from the plaintiff to the person who purchased the house. The above non-party paid 10,000 won for down payment and part of intermediate payment and 10,000 won to the plaintiff under the above agreement and completed the construction permit of 20,000 won with 20,000 won in the name of the plaintiff on the above land and completed the registration of ownership transfer of 15,000,000 won in the above apartment house from the plaintiff to the above 10,00,00,000, and 104,0.

2. Article 7 (1) of the Income Tax Act provides that in case where any person who has actually earned income is merely nominal and there is another person who has actually earned such income, the income tax shall be imposed by applying this Act to the person who has actually earned such income pursuant to Article 4 (1) of the Framework Act on National Taxes: Provided, That this shall not apply to the income accruing from the business prescribed by the Presidential Decree, and Article 21 (3) of the Enforcement Decree of the same Act provides that "other than subparagraphs 1 and 2, the business run by obtaining permission, authorization, license, patent, etc. from the State or a local government other than subparagraphs 1 and 2, and thus, it shall exclude the case where a de facto entrepreneur can be taxed on the de facto entrepreneur

The purport of the proviso of Article 21 subparagraph 3 of the Enforcement Decree of the above Act is to interpret that the actual business operator is separate in the business stipulated in the same subparagraph and that if it is possible to substance over form taxation, taxation on the nominal holder other than the actual business operator shall not be allowed, since it is interpreted that taxation on the nominal holder of the permission, authorization, etc. shall not be allowed. Thus, the argument that the substance over form taxation is possible is that the plaintiff who disputes

Article 4 subparag. 3 of the Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 7458, Dec. 31, 1974; Presidential Decree No. 7458, Dec. 31, 1974; Presidential Decree No. 7458) provides that, in cases where a de facto entrepreneur is otherwise identified in the case of imposing a tax on the nominal owner, if a de facto entrepreneur is able to impose a tax on the de facto entrepreneur, not only the nominal owner tax, but also the substance over form can be imposed if the de facto entrepreneur is able to impose a tax on the de facto entrepreneur, and therefore, there is room for misunderstanding that the de facto entrepreneur does not necessarily exclude the taxation on the nominal owner (see Supreme Court Decision

3. Therefore, the examination of whether the Plaintiff is deemed to be a nominal holder is based on the following: (a) entry of the Plaintiff’s certificate Nos. 7-1 to 15 (each house register) and a certified copy of the registry (record Nos. 121 to 156) submitted by the Plaintiff as reference material; (b) unlike the above recognition of the lower court, the Nonparty sold the remainder to a third party, excluding four buildings that the Nonparty transferred to the Plaintiff from the above apartment house to the Plaintiff by the end of the end of 1981; (c) the Plaintiff still remains in the name of the Plaintiff (○○○ Dong-dong unit unit unit unit unit unit) and the ownership of the Plaintiff was transferred to a third party in the year 1982 (○○○ Dong unit unit unit unit unit unit unit unit). A part of the housing that the Plaintiff transferred to the Plaintiff and some of other housing were transferred to the third party on one day (so, ○○○ unit unit unit unit unit unit unit unit unit unit unit unit, ○○○○ unit unit unit unit unit, ○○○○ unit unit unit unit unit unit).

In addition, the Plaintiff, who sold land, agreed to receive only KRW 5,00,000 among down payment of KRW 48,00,000 and intermediate payment of KRW 5,000,000, and the remainder of KRW 38,000,00 as a house for completion, is a usual land sale and purchase, and according to the evidence as employed by the lower court, the promise to pay in kind was made on January 15, 1981 when the intermediate payment date (O. 15, 1980) and the remainder payment date (O. 15, 1980) were much more than the intermediate payment date (O. 15, 1980) and the remainder payment date (O. 15, 1980). As seen above, the Plaintiff did not take any measures but did not take any measures.

Before clarifying the above various points, it is difficult to conclude that the Plaintiff is the Nonparty and the Plaintiff is the mere nominal lender, even if the Plaintiff and the Nonparty, who are actually the sales contract of the instant land between the Plaintiff and the Nonparty, written confirmations (Evidence A 5-7) and the testimony of the said Nonparty, and the sales contract of the instant apartment house in question, written by the said Nonparty, and written confirmations (Evidence A-7).

4. In conclusion, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion, on the grounds that the court below erred by misapprehending the legal principles as to the incomplete hearing and the determination of evidence value.

Justices Lee Lee Sung-soo (Presiding Justice)