early 208 1324 ( October 29, 2008)

propriety of the disposition imposing capital gains tax on the land held in title by joint ownership or sole name;

Where a claimant acquires or transfers land by unlawful means, such as preparation of a false contract, by deeming land trusted under a title trust in a joint ownership or sole name, and where real estate is traded in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name, disposition to calculate gains on transfer based on the actual transaction

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition disposition of KRW 103,930,300 against the Plaintiff on January 15, 2008 shall be revoked.

1. Circumstances of the disposition;

A. On May 25, 200, ParkCC awarded a successful bid for KRW 25,200,000 (hereinafter referred to as the “instant successful bid”) with the amount of KRW 25,20,000,000 (hereinafter referred to as “instant real estate”) of KRW 332,074 square meters in the Cheongju District Court’s Cheongju District Court in order to ensure that: (a) 335,476 square meters in the Cheongju District of Chungcheongnam-gun, Chungcheongnam-do; (b) 336,043 square meters in the same Ri; (c) 337,043 square meters in the same Ri; and (d) 337,446

B. On June 27, 2002, ParkCC reported the transfer income tax with the transfer value of KRW 70,376,000, and the acquisition value of KRW 64,876,00 (base market price) as if it transferred the instant real estate to DD Housing Construction Co., Ltd. (hereinafter “DD Construction”).

C. In the process of investigating the Plaintiff’s tax evasion of capital gains tax through the OE’s information, the actual owner of DD Construction, the Defendant: (a) determined that the instant real estate was co-ownership of the Plaintiff and ParkCC and the 1/2 shares of which were held in title trust; (b) the transfer value was KRW 315,00,000,000, which is the actual transaction value (=630,000,000 + 630,000,000) as the transfer value; and (c) determined and notified the Plaintiff on January 15, 2008 (hereinafter “instant disposition”).

D. The Plaintiff appealed and filed an appeal with the Tax Tribunal on April 1, 2008. However, the Tax Tribunal rendered a decision to dismiss the appeal on October 29, 2008. The Plaintiff filed the instant lawsuit on January 14, 2009.

[Ground of Recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1.2 (including each number), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

① The Plaintiff borrowed 1/2,00,000 won for the bid price of this case to ParkCC at the time of the successful bid of this case due to the lack of successful bidder at the time of the bid of this case, and thereafter disposed of the instant real estate with the authority to dispose of it delegated by ParkCC and collected the said loan. It is not a co-owner of the instant real estate.

② The instant disposition was unlawful in deeming that the transfer value was KRW 630,000,000,000, and that the instant disposition was unlawful.

③ Even if the purchase price of the instant real estate was KRW 630,00,000, the remaining amount calculated by subtracting the money actually received from DD Construction is apparent to be impossible, and the amount actually received shall be deducted from the transfer price.

(b) Fact of recognition;

(1) On February 26, 2002, the Plaintiff entered into a sales contract for real estate and authorization and permission as follows with E, an actual owner of DD Construction:

(a) Transferor: ParkCC (Representative Plaintiff) and transferee: E

(B) Real estate: The real estate in this case, and the 2,216 square meters prior to 338 square meters prior to the 2,216 square meters in the face-to-face BBri-ri Ma

(C) Sales amount: 90 million won (including all construction design cost, civil engineering design cost, groundwater development cost and farmland diversion charge) and down payment of KRW 10,000,000,000, which are paid or payable to obtain business approval for each apartment on the ground of the above real estate owned by the Plaintiff, simultaneously with the contract, and the remainder by July 10, 2002, respectively.

(2) On June 27, 2002, ParkCC concluded a contract between D Construction and D Construction to sell the instant real estate in KRW 200,000,000, and received KRW 200,000,000 from the Plaintiff, and completed the registration of ownership transfer in the future of D Construction.

(3) On August 21, 2002, the Plaintiff drafted a sales contract as follows with D Construction again on August 21, 2002.

(A) Party: The seller, the buyer, and the buyer, shall be DD Construction (Attorneys OE).

(b) Real estate: The real estate of this case

(C) Sales amount: 630,000,000 won

DD Construction shall be liable for civil and criminal liability for damages, if it pays to the Plaintiff the full amount of the first fund at the time of the occurrence of the first fund, and if it fails to pay the first fund at the time of the occurrence of the first fund, it shall be liable for the remainder of 430,000,000 won after deducting 20,000,000 won paid to ParkCC at the time of the sale of this case.

(4) On October 17, 2007, ParkCC makes a statement as follows:

(A) ParkCC was awarded the instant bid in the name of ParkCC by investing one-half of each of the investment schemes of the Scam approved Plaintiff. Since then, it was known that E, having a position as a representative director of DD construction through the Plaintiff around June 2002, E, who was not disposing of the instant real estate due to various circumstances, was entitled to acquire the instant real estate in KRW 400,000,000.

(B) Around June 2002, ParkCC met EE at the registration office of the Chungcheongnam-gun, Chungcheongnam-do, 2002, and OE prepared 200,000,000 won due to financial standing, and the remainder of 200,000,000 won will be paid later. ParkCC did not receive the payment in full. However, while ParkCC concluded a contract with the Plaintiff, the Plaintiff’s share of KRW 200,000,000 was the transfer of the instant real estate to E, and it was paid by E after concluding a sales contract as of June 27, 2002.

(C) At the time of the instant transfer, ParkCC did not know whether there was a side agreement between the Plaintiff and E, and the Plaintiff was aware of the existence thereof when the Plaintiff filed a criminal complaint against E with the Southern Police Station at Sungnam-si and was investigated as a witness on June 2004.

(5) As above, E did not pay the remainder of 200,000,000 won paid to ParkCC on June 27, 2002 as the sales price for the instant real estate. The Plaintiff filed a complaint against E as fraud. On June 30, 2005, E received 211,70,000 won as the sales price for the instant land at the auction procedure around June 30, 2005, E received 21,70,000 won as the sales price for the instant land, and E received 47,677,709 won as the sales price for the instant real estate and 74,784,370 won as the sales price for the instant real estate on August 13, 2008 and September 4, 2008.

(6) Meanwhile, on the other hand, the Plaintiff filed a lawsuit against D Construction for payment of the purchase price as Cheongju District Court GG support 2005Gahap1377, and on September 22, 2006, D Construction was sentenced to the judgment that "the Plaintiff shall pay the Plaintiff KRW 430,000,000 and the delay damages therefor", and on October 20, 2008, in the case of Daejeon High Court Decision 2008Na3624, Daejeon High Court Decision 2008Na3624, the Plaintiff decided that "D Construction shall pay the Plaintiff the purchase price of KRW 150,00,000."

(7) On February 19, 2009, the Plaintiff was sentenced to a fine of KRW 5,000,000,000, which is a crime of fraud with the purport that "the Plaintiff acquired the claim of KRW 65,000,000, which is the share of ParkCC among the claim of KRW 330,000,000 for the remainder of the 1 sale of the instant case against E, as the Cheongju District Court Decision 2008Da1370, which became final and conclusive."

[Ground of Recognition] Evidence Nos. 3 through 5.8 through 10, each entry of Evidence Nos. 3 and 4 (including each number)

C. Judgment on the plaintiff's assertion

(1) The plaintiff deemed that it is excessive to the lender of the real estate purchase fund in the instant case

(A) In administrative litigation regarding taxation, the burden of proof exists with respect to the facts that meet the requirements for taxation, such as the grounds for taxation and the amount of tax base (Supreme Court Decision 80Nu521 Decided May 26, 1981). Barring special circumstances, the Plaintiff may be deemed to have actually acquired 1/2 of the instant real estate in question.

(B) Although it is recognized that ParkCC was awarded a successful bid for the instant real estate in its own name, it is insufficient to recognize that ParkCC actually acquired the ownership of the instant real estate only by the foregoing facts.

(C) Rather, in full view of the following circumstances, it is reasonable to deem that the Plaintiff acquired the ownership of 1/2 shares of the instant real estate.

① Although the Plaintiff asserted that the instant funds were loans to ParkCC, the Plaintiff did not present documentary evidence, such as the loan certificate and the agreement on repayment of interest, etc. between the Plaintiff and ParkCC.

② ParkCC invested 1/2 each of the Plaintiff’s investment schemes and was awarded a bid of approximately KRW 250,000,000 in the name of ParkCC. Of KRW 400,000,000 for the instant real estate purchase price, KRW 200,000 for the instant real estate purchase price was determined as the purchase price, and concluded a sales contract with E on June 27, 2002 and received KRW 200,000 from E on the same day.

③ On February 26, 2002 between the Plaintiff and E, the sales price of the instant real estate was finally determined as KRW 630,000,000 in accordance with the sales contract entered into between the Plaintiff and E, as the business license price was included in KRW 900,000 under the business license agreement, etc.

④ ParkCC shall have become aware of the existence of a side agreement dated February 26, 2002 and there is no amount received after the registration of ownership transfer.

⑤ In transferring the instant real estate, the Plaintiff started to have led to setting the terms and conditions of the transfer between D Construction and D Construction, while ParkCC entered into a side agreement dated February 26, 2002 and August 21, 2002, but did not know of the existence of the sales contract itself or not attend at the time of conclusion of the contract.

(D) Ultimately, considering the aforementioned circumstances, the Plaintiff appears to be a 1/2 share holder of the instant real estate.

Therefore, the plaintiff's assertion that the plaintiff is not the owner of the real estate of this case is without merit.

(2) The principal place for the transfer value of the real estate of this case

As seen earlier, the sales contract between the Plaintiff and DD Construction dated August 21, 2002 entered 630,000,000 won (the remainder after DD Construction deducts 200,000,000 won paid to ParkCC at the time of the instant sales) in the sales contract. The Plaintiff asserted that the sales price is 630,00,000,000 won in the civil lawsuit against D Construction; the Plaintiff asserted that the sales price is 630,000,000 won in the real estate auction procedure of the instant real estate around June 30, 2005; the Plaintiff paid 211,70,00,000,000 won as the sales price of the instant real estate from the date of the instant real estate sales contract to the Plaintiff on August 13, 2008 and April 4, 2009; and the Daejeon High Court received 207,700,704,7008,3007,274,007,007, etc.

According to the above evidence, it is recognized that AA or A or A or HH testified testified that the purchase price of the instant real estate was KRW 530,00,000 in the criminal case of fraud against the Plaintiff (Cheongju District Court 2008DaMa1370, Cheongju District Court 2008) and that the purchase price of the instant real estate was KRW 530,00,00 in the instant real estate before D or DD Construction, but in light of the fact that A or DH was not the actual party to the sales contract, and that the amount of the sales contract was not an issue in the instant criminal case, it is difficult to believe that A or HH’s statement was made as it is, and there is no other evidence to acknowledge the Plaintiff

Ultimately, the plaintiff's assertion on this part is without merit.

(3) Claim to deduct the irrecoverable amount.

The Income Tax Act adopts the so-called principle of confirmation of a right to taxable income, deeming that a right that is a cause of income has been realized when there is no income in reality, and adopts the so-called principle of confirmation of a right that calculates taxable income: Provided, That even when a claim that is the cause of income has occurred, if it is objectively apparent that the claim that is the cause of income subject to income becomes impossible to recover due to the debtor's bankruptcy, etc. and that it becomes no longer possible to realize the income in the future, income tax may not be levied on such income. Such income cannot be imposed on taxable income. In addition, the issue of impossibility of collection of the claim should be determined by an objective method of assessment in light of social norms by taking into account the details of the transactions and the following circumstances (see Supreme Court Decision 201Du7176, Dec. 26, 2003). At least when a claim is confirmed (before the final return on tax base or the determination and revision of the tax base and tax amount).

In light of the fact that the disposition of this case was rendered on January 15, 2008, and thereafter, the Daejeon High Court Decision 2008Na3624 decided Oct. 20, 2008 in lieu of the adjustment that D Construction would pay the Plaintiff KRW 150,000,000, it is difficult to view that the Plaintiff’s claim for the remainder payment was in an impossible condition at the time of the disposition of this case, and there is no other evidence to acknowledge this otherwise.

Therefore, the plaintiff's assertion on this part is without merit.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.