Suwon District Court-2015-Gu Group-33619 ( October 05, 2016)

Cho-2015-China-915 ( October 15, 2015)

The assertion that capital gains are not the plaintiff is without merit.

In the event that the registration of ownership transfer of real estate is completed, not only the third party but also the former owner is presumed to have acquired ownership according to the legitimate cause of registration.

Article 97 (Calculation of Necessary Expenses in Transfer Income)

2016Nu69675 Revocation of Disposition of Imposing capital gains tax

OO

○ Head of tax office

Suwon District Court Decision 2015Gudan33619 Decided October 5, 2016

August 23, 2017

September 20, 2017

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 311,006,990 against the Plaintiff on February 12, 2014 by the Defendant on February 12, 2014 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows: (a) the dismissal or addition of part of the judgment of the court of first instance as stated in Paragraph (2) and the addition of the judgment of the plaintiff’s new or new argument in the trial to the court of first instance as stated in Paragraph (3). Therefore, the meaning of the summary used in this case is identical to that of the judgment of the court of first instance as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter the meaning

2. Parts to be removed or added;

○○○ Construction Co., Ltd.(hereinafter referred to as ○○ Construction Co., Ltd.) in Part 5 of the second part is called “○○ Development Co., Ltd.(hereinafter referred to as “○○ Development”).”

○ 6th page 6 of the second page "(2) is added to "the buyers of the instant case" (hereinafter collectively referred to as "the buyers of the instant case")".

○ The second page " January 3, 2015" shall be " January 13, 2015".

The third-party 7 to 15 are as follows.

“1) Since the instant land actually acquired from the Plaintiff and transferred the instant land to the instant buyer, the instant disposition premised on the Plaintiff’s direct transfer of the instant land to the instant buyer goes against the substance over form principle.

��제4쪽 제8행의 "사용하는"부터 제9행의 "명백하므로"까지를 "사용하여 원고가 그 경제적 가치를 상실하게 되었으므로"로 고친다.

○ The 4th parallel 15 to 5th parallel 16 are as follows.

Article 14(1) of the Framework Act on National Taxes explicitly states the principle of substantial taxation. If the ownership of income is nominal and there is another person who actually obtains such income, income tax shall be imposed on the person who actually obtains such income. As such, the person who asserts that the ownership of income is nominal and that there is another person who actually obtains such income (see, e.g., Supreme Court Decision 84Nu505, Dec. 11, 1984). In addition, if the ownership transfer registration of real estate is completed, not only the third person but also the former owner is presumed to have acquired ownership through legitimate grounds for registration. Therefore, the title holder should assert and prove the grounds for invalidation (see, e.g., Supreme Court Decision 2010Da75044, Jan. 10, 2013).

B) Comprehensively taking account of the purport of the arguments in Gap evidence Nos. 4, 7, and 8, evidence Nos. 15-1, and evidence Nos. 16 through 18, the plaintiff entered into a sales contract on March 26, 2008 with Lee ○○-si, including the land in this case, to sell the land at KRW 1,960,000, with the sale price of KRW 1,960,000, which includes the land in this case. On January 17, 2008, the establishment registration of a mortgage on the land in this case was completed with the debtor on January 17, 200, 2000, the seller’s establishment registration on the land in this case with the right to purchase and sale of the land in this case at KRW 200,000,000,000,000,000,000 won, and 205,000,000.

C) However, in full view of the above evidence and evidence Nos. 12, 13, 15-2, 3, 4, 5-1, 2, and 3, and 5-1, 2, and 3 of the evidence No. 5-3, and the following facts or circumstances revealed in light of the court’s response to financial transaction information to the Korean Bank Co., Ltd., as a whole, it is insufficient to recognize that the above facts of recognition alone are acquiring the land from the Plaintiff and transferring it to the buyer of this case, and there is no other evidence to acknowledge otherwise, and it is reasonable to view that the Plaintiff directly transferred the land of this case to the buyer of this case. Accordingly, the Plaintiff’s above assertion is without merit.

① As to the instant land, the Plaintiff voluntarily reported the transfer income tax of KRW 1,336,00,000 to the Plaintiff, and the documents attached at the time of reporting the transfer income tax on the instant land are accompanied by a sales contract with the seller as the Plaintiff (in the case of the instant land, i.e., the Plaintiff’s agent Kim○), the purchaser as the purchaser of the instant land, and the purchaser as the total of KRW 1,336,000,000. The form and details of the attached sales contract do not seem to be particularly exceptional, and there is no special reason to report the transfer income tax on the instant land as the Plaintiff’s own income, and the registration of transfer of ownership on the instant land was directly executed by the Plaintiff as the purchaser of the instant land.

② Article 9(5) of the special terms and conditions of a sales contract on land stipulate that the purchase price shall be paid to Kim○, a seller’s agent. Kim○-mun received KRW 100 million from ○ Development on April 5, 201, KRW 100 million from ○○ Development on April 18, 201, KRW 268 million from ○○ Construction on June 16, 2011, KRW 112 million from ○○ Development. The Plaintiff received KRW 200 million from ○○ Construction on June 2, 2011, and KRW 190 million from ○○ Development on June 2, 201. The Plaintiff appears to have received KRW 16,000 from ○○ Development on the said land. Ultimately, the Plaintiff received KRW 716,00,000 from ○○ Development on the said land.

③ On September 3, 2012, 200, KRW 620,000 for the purchase price of land (contract deposit of KRW 62,00,000 for the purchase price of KRW 349,474,00 for the remainder of KRW 558,00,00 for the remainder of KRW 558,00,00 for the purchase price, and KRW 349,474,00 for the remainder of KRW 50,00 for the remainder of KRW 558,00 for the remainder of KRW 20,91, September 20, 201), which was represented by the Plaintiff, was paid to the mortgagee and his agent Kim ○, and the Yang ○, who received documents necessary for the registration of transfer of ownership, was paid to the Plaintiff and transferred ownership. As stated in the above confirmation document, the down payment as stated above was made to Kim○, KRW 349,474,00 for the remainder of the remainder on the date specified in the aforementioned confirmation.

④ The Kim Jong-mun only prepared a written agreement with the ○○○○○-dong, etc. to take over all rights and obligations with respect to ○○○○○-dong multi-household housing, and does not prepare a letter of acceptance with the purport that Kim○-dong will take over the status of purchaser of the instant land. Moreover, since no objective data was submitted to the Plaintiff that the Plaintiff consented to it, Kim○-mun cannot be deemed to have taken over the status of purchaser of the instant land.

⑤ On February 23, 2011, the Plaintiff prepared a written confirmation of full payment of the land price with the purport that ○○○○○○ Dong, 595-2, and 9 parcels of land including the instant land, was confirmed to have been fully paid KRW 2 billion. However, even if the Plaintiff himself/herself affixed his/her written confirmation, he/she argues that if the Kim○ book affixed his/her seal on the said written confirmation, he/she would transfer the instant parcel of land to another person and pay the balance as the price, and that the details are different from the fact. Therefore, the Plaintiff’s written confirmation alone does not deem that a new sales contract was concluded between the Plaintiff and Kim○.

(6) Article 98 of the former Income Tax Act and Article 162 of the former Enforcement Decree of the Income Tax Act stipulate that the date of liquidation shall be deemed the date of transfer except in exceptional cases, such as the transfer of ownership before settling the price for the transfer of assets. Thus, even if a sales contract was concluded, insofar as the price was not paid in full, it cannot be deemed that the transfer under the Income Tax Act was made. Even if the Kim○ book acquired the status of purchaser of the instant land or concluded a new sales contract between the Plaintiff and the Plaintiff, it cannot be deemed that the instant land was acquired under the Income Tax

○ 6. 18-19 of the 6. “The burden of proof on the points shall be borne by the person liable for duty payment who asserts the reduction or exemption of capital gains tax.”

(c)be-friendly;

○ up to 7 15 eths to 21 eths are as follows:

The phrase "in a case where the State or a local government grants a road free of charge to the State or a local government" does not necessarily mean only the case where the ownership of the road is transferred to the State or a local government without compensation, but also refer to the case where the State or a local government allows the State or a local government to provide the road free of charge for community life as public property. Thus, even if the State or a local government did not provide the road for common use, if it is actually constructed and provided as a road within the transferred land so that the general public can use it free of charge, and if the owner loses its economic value, the value of the part of the road falls under necessary expenses similar to the value of the land as provided by Article 79 (1) 4 of the Enforcement Rule (see Supreme Court Decision 86Nu79, 86Nu780, Dec. 13, 198).

In full view of the statements in Eul evidence Nos. 7-1 and 2 and the purport of the entire arguments in the fact-finding as to the Gwangju City market, all of the roads around ○○○○ Dong 595-1, 596-1, 595-7, and 596-3 have been owned by the plaintiff on April 16, 2004. The same road 595-1, and 596-1 has already been used as village access roads on December 26, 2002, prior to acquiring the land of this case, the plaintiff had already been used as village access roads on December 26, 2002. The above facts cannot be acknowledged that each of the above new roads was used as a road category changed on November 5, 2009, and since each of the above facts cannot be acknowledged as being used as a new road by the plaintiff on November 5, 2009.

3. Additional determination

A. The plaintiff's assertion

1) The Plaintiff’s money received as a result of the sale of the instant land is merely KRW 950,818,247,000, which is merely unlawful to calculate the transfer value of the instant land as KRW 1,336,00,000.

2) Of KRW 30,00,000 paid by the Plaintiff to the largest head of ○ as real estate brokerage commission and KRW 170,000,000,000 paid in return for the withdrawal of a disposition prohibiting disposal of the instant land to four persons, the former contractor of the instant land, and KRW 86,67,748,00,00 shall be included in necessary expenses.

B. Determination

1) As to the first argument

As long as the Plaintiff is deemed to have directly transferred the instant land to the instant buyer, even if the Plaintiff did not receive part of the purchase price from Kim○, it is limited to the internal relationship between the Plaintiff and Kim○, and there is no illegality in the Defendant’s disposition that deemed the transfer price of the instant land as KRW 1,336,00,000. The Plaintiff’s assertion on this part is without merit.

2) As to the second argument

A) The penalty paid to cancel a separate sales contract prior to the act of transfer, which is subject to capital gains, is not directly related to the above transfer act, and is not not a necessary expense under Article 97 of the former Income Tax Act, and thus, it is not a deduction from the gross income (transfer value) resulting from the above transfer act from the gross income (transfer value) or a disposal as necessary expense (see Supreme Court Decision 2005Du15380, Sept. 20, 2007).

B) According to the statement of evidence No. 12 and the purport of the testimony and the whole pleadings by the witness of the party concerned, the maximum ○○ is not a sales contract between the Plaintiff and the purchaser of the instant transfer income, but rather a sales contract between the Plaintiff and the Plaintiff, which was subject to the instant transfer income and the purchaser of the instant case, mediating the Plaintiff to enter into a new sales contract with the former ○○○○○, etc., and the largest ○ was paid KRW 30,000,000 for the Plaintiff or the former ○○, but actually paid KRW 20,000 for the amount of KRW 27,00,000,000 for the amount of KRW 20,00 for the first ○○, Gangwon-gu, etc., and the remainder can be recognized as having the fact that the Plaintiff had.

Examining the above facts in light of the legal principles as seen earlier, the above KRW 30,000,000 or KRW 27,000,000 shall not be treated as necessary expenses, since it is not directly related to the transfer act which is subject to the transfer income of this case.

C) In addition, there is no evidence to acknowledge that the Plaintiff paid KRW 170,000,00 to the Gangseo-gu, etc. the penalty following the withdrawal of the provisional disposition on the instant land, and even if paid, it does not constitute necessary expenses as it is not directly related to the transfer of the instant land.

D) Therefore, the Plaintiff’s assertion on this part is without merit.

4. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.