Examination Income 2010-0039 (2010.06.07)

A person who has accrued business income from the sale of new construction

The actual owner of the land and building is determined not to be the plaintiff in light of the fact that the registration relationship, the content of the sales contract, and the right to preserve the provisional seizure are actual bonds of the building in this case, and the deposit of 100 million won is deposited.

The contents of the decision shall be the same as attached.

1. The part of the lawsuit in this case seeking revocation of the disposition imposing resident tax shall be dismissed.

2. The Defendant’s disposition of imposition of global income tax of KRW 222,81,390 on December 1, 2003 to the Plaintiff shall be revoked.

3. Of the litigation costs, 10% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

The disposition of imposition of KRW 22,302,230 as income tax on December 17, 2009 by the Defendant and Paragraph 2 of this Article shall be revoked to the Plaintiff.

1. Details of the disposition;

(a) Registration relationship;

With respect to ○○○○-si ○○○-dong 546-8 237 square meters and multi-family houses with the above 4th floor above ground (hereinafter referred to as “instant land and buildings”), the following registration has been completed:

B. Plaintiff’s report of transfer income tax and Defendant’s imposition of global income tax

1) On May 31, 2004, the Plaintiff filed a final return on capital gains tax on the grounds that the instant building was transferred to the Defendant at KRW 256,000,000 on November 18, 200, on the transfer value of the building.

2) After the pre-assessment review process, the Defendant confirmed that the income from the new construction and transfer of the building of this case falls under the business income of the housing construction and sales business, and imposed KRW 22,81,390,461,830 on December 1, 2009, including the real transaction price of KRW 768,00,000 as the total income amount of KRW 390,861,830 as the total income amount of KRW 139,861,830 as the land purchase price + the construction contract amount of KRW 250,60,000 as the total income amount of KRW 222,81,390 as global income tax for the year 203 (hereinafter “instant disposition”), and imposed on the Plaintiff on December 7, 2009, KRW 22,302,230 as the income tax for the year 209.

(c) Procedures of the previous trial;

On January 18, 2010, the Plaintiff filed an objection to the Defendant and asserted that the amount of business income should be included in necessary expenses, and the Defendant dismissed the said objection on February 12, 2010. The Plaintiff again filed a request for examination on the same ground as the Commissioner of the National Tax Service on April 26, 2010, but the Commissioner of the National Tax Service dismissed the said request for examination on June 7, 2010.

[Ground of recognition] Evidence Nos. 1, 2, and 5 1, 2, Gap evidence Nos. 6 through 9, Eul evidence Nos. 1, Eul evidence Nos. 2-1 through 6, and the purport of the whole pleadings

2. Determination

A. Whether the lawsuit seeking revocation of the disposition imposing resident tax is legitimate

According to Article 177-4(1), (2), and (5) of the former Local Tax Act (amended by Act No. 9924, Jan. 1, 2010), a resident tax to be calculated is a local tax to be paid to the head of the Si/Gun (the head of the Gu in the case of the Special Metropolitan City/Metropolitan City/Metropolitan City; hereinafter the same shall apply) having jurisdiction over the place of payment of income tax. If the head of the tax office collects the income tax through the method of imposition according to the correction, decision, etc. under the Framework Act on National Taxes or the Income Tax Act, it shall be deemed that the head of the Si/Gun has imposed and notified the resident tax to be imposed at the same time. Thus, the defendant who seeks to revoke the disposition of imposition of resident tax shall be the head of the Si/Gun having jurisdiction over the place of payment of income tax (see, e.g.

Therefore, the part seeking revocation of the resident tax disposition among the lawsuit of this case is unlawful because it is against a person without standing to be the defendant (the defendant is notified to the head of the Si/Gun according to the final result of the disposition imposing global income tax and the disposition imposing resident tax is organized, so there is no benefit in dispute).

B. Whether the instant disposition is lawful

1) Plaintiff’s assertion

Around 2001, the Plaintiff became aware of the SeoB and OCC couple while in office as the head of the site office of △ integrated construction in △○, and SeoB purchased the pertinent land from ED and GaE, the buyer of the instant land, and held the title trust in the name of the Plaintiff on May 6, 2002.

SB sold the building of this case to the West after constructing the building of this case, and only the Plaintiff became aware that the building of this case was newly constructed.

Therefore, the actual owner of the land of this case, the owner and the owner of the building of this case are BB, and uB is the person to whom the business income accrued from the new construction and sale of the building of this case, the disposition of this case against the plaintiff should be revoked in an unlawful manner.

2) Determination

A) The fact that both the nominal owner, the owner and the contractor of the instant building, and the nominal owner of the ownership preservation registration were the Plaintiff is the title holder of the instant land.

B) However, on the other hand, evidence Nos. 3 and 4, evidence Nos. 5-1, 2, and 6, evidence Nos. 10, 11, evidence Nos. 15, 16, and evidence Nos. 1, 2, and 17-1 through 7, evidence Nos. 18, 21, 22, and 24, each of the statements No. 17-1, A’s evidence Nos. 18, 21, 22, and 24, and the following facts and circumstances acknowledged by evidence Nos. 3, 4, and 5-1, 5-2, and 16, in particular, the person to whom the business income from the new construction and sale of the building of this case belongs shall be SeoB, taking into account the facts supporting them.

① Circumstances, etc. regarding the acquisition of the instant land

At ○○○○○○-dong, ○○○○○○○, △△△dong Housing Site Development Zone during the period from around 2002 to around 2004, WesternB received a new construction of 30-40 multi-family house from the housing site owner and performed the construction work.

The sales contract was prepared on March 29, 2002 by the seller and SeoB as the buyer on March 29, 2002 (Evidence A). The sales price of the above sales contract is KRW 149 million (payment of KRW 15 million for a contract, the balance of KRW 134 million for a contract, and the payment of KRW 134 million for a loan until April 29, 2002). However, on April 29, 2002, the sales price of the above land was entered as KRW 150 million for a deposit account of SeoB, which is the remainder of the above sales contract. The SeoB paid KRW 50 million for a local education tax in its own name on February 1, 202, which is prior to the preparation of the above sales contract.

On the other hand, the special terms and conditions of the above sales contract stipulate that "the seller approves the change of the name in the name of the person designated by the buyer on the balance date," and on May 6, 2002, the registration of transfer of ownership was made in the name of the plaintiff on the land of this case, and on December 13, 2002, SeoB revoked the above provisional registration on February 4, 2003, on which the right to claim the transfer of ownership was transferred to ASEAN.

According to the above details of the purchase of the land of this case, registration relations, etc., it may be deemed that SeoB purchased the land of this case and held the title trust to the Plaintiff. Thus, the actual owner of the land of this case is SeoB.

② Circumstances, etc. concerning the construction and sale of the instant building

The registration of preservation of ownership in the name of the plaintiff on the building of this case was made on May 29, 2003 by the entrustment of provisional disposition registration on May 29, 2003.

In addition, the seller's column of the sales contract (Evidence No. 4) dated January 23, 2003, prepared when selling the land and building of this case to the Western, entered in the sale contract (Evidence No. 4 of the above sales contract) as "SB" as "SB". [In relation to the above sales contract (Evidence No. 4 of the above sales contract, the "BB" part of the seller's column was deleted, and the sales contract (Evidence No. 15-2 of the above evidence No. 15 of the above) was prepared more than one copy of the sales contract (the document No. 15-2 of the above sales contract was written later in the course of resolving the issue of the tax of this case imposed on the plaintiff in the name of the plaintiff

On the other hand, SeoB completed the provisional attachment registration with the claim amount of KRW 100 million on February 20, 2006 with respect to the land and building of this case, and on the grounds of the application for provisional attachment, "SaB borrowed KRW 274 million from SeoB on January 13, 2003 to pay KRW 274 million by December 31, 2003, and signed and sealed on a promissory note." The above KRW 274 million was the same as the balance of KRW 274 million on the sales contract of the land and building of this case (Evidence No. 4) and the SeoB deposited KRW 100 million with the Seo-B on deposit account of the provisional attachment amount of KRW 100 million.

In full view of the fact that the above registration relationship, the terms and conditions of the sales contract, and the right to preserve the above provisional seizure registration are actual land of this case and the remainder of the sale and purchase of the building, and that the deposit amount of KRW 100 million was deposited to the SeoB, it is deemed that the SeoB sold the land and the building of this case to the SeoB as the actual owner, owner, and business operator of the building of this case.

C) Therefore, the instant disposition, based on the premise that the income accrued from the transfer of the instant land and the instant building was attributed to the Plaintiff, not Seocho, should be revoked as it is unlawful against the principle of substantial taxation.

3. Conclusion

Thus, the part of the lawsuit of this case seeking revocation of the disposition of resident tax, is dismissed, and the plaintiff's claim seeking revocation of the disposition of this case is justified.