Suwon District Court-2014-Gu Partnership-57363 (Law No. 12, 2016)

Cho Jae-2014 Medium-990 (Law No. 126, 2014)

The burden of proving the transfer of title trust real estate

Since the registration of ownership transfer of real estate is based on the title trust, the burden of proving that there is another person who actually obtains income from the transfer of the real estate exists.

Enforcement Decree of the Income Tax Act Article 162 (Time of Transfer or Acquisition)

2016-Nu-34785 Revocation of Disposition of Imposing capital gains tax

AA

O Head of tax office

December 14, 2016

201.01.25

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 part (including additional tax) exceeding KRW 000 of the imposition disposition of capital gains tax of KRW 000 for the Plaintiff in July 5, 2013 which the Defendant imposed on the Plaintiff in the year 2009 shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s explanation is as follows. The reasoning for this Court’s explanation is that part of the judgment of the court of first instance is dismissed as follows, and the reasoning for the judgment of the court of first instance is as stated in the reasoning of the judgment except for addition of the judgment of the plaintiff’s new argument in the court of first instance as stated in paragraph (2) above. Thus, the meaning of the abbreviation used in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act

2. Parts to be removed or added;

○ The 4th page "Plaintiff" is "BB on behalf of the Plaintiff", and the 12th page "Plaintiff" is "BB on behalf of the Plaintiff" respectively.

○ The second page of the second page " July 22, 2009" shall be " July 27, 2009".

○ The 5th page 18 to 6th page 2 shall be as follows.

Article 4 (1) 3 of the former Income Tax Act (Amended by Act No. 9897, Dec. 31, 2009)

According to the title, Articles 88(1) and 94(1), etc., capital gains tax shall be transferred to land or buildings.

(1) The term "transfer" means the registration or transfer of assets; or

It is stipulated that an asset is actually transferred for price due to sale, exchange, investment in kind in a corporation, etc. regardless of registration. In this case, “the actual transfer of the land ownership for price” means that the price of the land was paid to the extent that it can be deemed that the price of the land was actually paid according to social norms (see, e.g., Supreme Court Decisions 82Nu286, Feb. 14, 1984; 88Nu8609, Jul. 11, 1989). Meanwhile, it is reasonable to view that the ownership of the land subject to transfer includes not only the ownership completed the registration, but also the actual ownership that leads to the extent that the price of the land was actually paid for price to the extent that the land was actually fully paid under social norms (see, e.g., Supreme Court Decision 92Nu8934, Apr. 27, 1993).

The "00 won" in the 6th and 5th parallel parallels are all "00 won", and the "00 won" in the 5th parallels are "00 won".

In full view of the facts stated in the 7th 2-4th 2nd 7th 2nd 2nd 4th 2nd 7th 7th 7th 7th 7th 7th 7th 2009, the phrase “as a whole,” the following is added to the last 6th 7th 7th 6th 7th 7th 7th 200. The auction procedure for exercising the security right to the land at issue at issue at issue at issue at issue was conducted after the EE acquired the de facto ownership to the land at issue at issue at issue at issue at issue at issue at issue

○ The 7th page 20 of the 7th page "this Court" shall be deemed to be "court of the first instance", and the 8th page 7-13 of the 8th page "person"

In full view of the above, the part can be determined, "as it is recognized," and "as it is so determined."

○ Article 14 of the former Enforcement Decree of the Income Tax Act (Presidential Decree No. 21934, Dec. 31, 2009)

“former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 22034, Feb. 18, 2010)” means “former Enforcement Decree of the Income Tax Act”

The term "before amendment has been made)".

2. Determination as to the assertion of addition of the trial room

A. The plaintiff's assertion

The title owners of each of the instant lands were CCC but substantial owners were DD. However, BB, the Plaintiff’s dynamics, purchased each of the instant lands from DD on May 18, 1992, and completed the registration of transfer of ownership in the name of the Plaintiff on December 27, 1995 following the conclusion of the title trust agreement with the Plaintiff on November 20, 1995. Accordingly, the instant disposition imposing capital gains tax on the Plaintiff is unlawful on the premise that the income accrued to the Plaintiff from the transfer of the instant land, on the premise that the transfer of the instant land was reverted to the Plaintiff.

B. Determination

1) If a title truster transfers real estate to a third party and income from such transfer was attributed to a title truster upon his/her own will, under the principle of substantial taxation under Article 14(1) of the former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010), the person liable to pay the relevant capital gains tax does not become the person liable to pay the said income tax (see, e.g., Supreme Court Decisions 96Nu6387, Oct. 10, 1997; 2012Du10710, Sept. 4, 2014). However, since the transfer registration of real estate was based on a title trust, the title truster bears the burden of proving that there was a person who actually acquired income from such transfer of real estate, and thus, the title truster, who is the subject of the transfer, bears the burden of proving that the Plaintiff was the actual owner of the pertinent land, not BB, at the time of the transfer of the land (see, e.g., Supreme Court Decision 84NuB).

2) In full view of the following facts: Gap evidence Nos. 6-1, 7-2, Eul evidence No. 8-9, Gap evidence No. 16-1, 2, Eul evidence No. 18-1, 27, and Eul evidence No. 15-1 and 3, Gap evidence No. 16-2, Eul evidence No. 27, Eul evidence No. 16-1, and Eul evidence No. 15-2, the court below acknowledged the transfer of the above land No. 7-1, Eul evidence No. 60, Eul evidence No. 1, 197, Eul evidence No. 2, Eul evidence No. 1, and Eul No. 2, the court below acknowledged the transfer of the above land No. 2, Eul evidence No. 1, 197, Eul No. 1, 200, 00, 000, 16-1, 1, 41-2, 00

① On May 18, 1992 between D and BB, the real estate sales contract (Evidence 6-1 of the evidence No. 6) states that the down payment is paid on the date of the contract, and the remainder of KRW 00 million is paid on June 16, 1992. The receipts (Evidence 6-3, 4 of the evidence No. 6) submitted by the Plaintiff are that the down payment and the remainder of KRW 00,000 are paid on May 18, 1992. The above real estate sales contract and receipt were all 00,000 Jeju apartment 70,201, 201, and 97G 97G 1992, each of the above real estate sales contract or 9G 9G 98G 198.

② In the lawsuit claiming performance of land transaction permission procedures (No. 2010Gahap10514) filed by EE against the Plaintiff, the Plaintiff submitted a written opinion on the conciliation, and “E” out of the amount transferred by BB, the Plaintiff claimed that “B shall be excluded from the details of repayment to the Plaintiff, as it is the purchase price of 00 Do 00 Do 41-2407 m2407m2, which was owned by BB, and thus, the amount of KRW 0 million paid to BB shall be excluded from the details of payment to the Plaintiff.” At the time of the conclusion of the conciliation in the above case, it appears that the above amount of KRW 0 million was not included in the calculation of the amount of the purchase price already paid by EE (On the other hand, the first purchase and sale of the entire land at KRW 00 million, but the land at BB was divided into the Plaintiff’s land and the Plaintiff’s land at KRW 200,000,000,00.

③ The remainder remaining after deducting the amount used to repay the loan out of the purchase price of each of the instant lands was deposited into the Plaintiff’s account (the Plaintiff asserted that the Plaintiff actually used the said account, and based on which the transaction store code stated in the No. Nonghyup General Deposit Transaction List in the Plaintiff’s name was the code number of the bank located in the region where the Plaintiff reside, but solely on such circumstance, it is insufficient to view that the amount deposited into the said account was actually reverted to BB).

④ BB made a registration in its name on May 15, 1996 with respect to the above six parcels of land, 00:0 00 :00 :41-1, 41-2, and 41-3.

⑤ In light of the fact that each land of this case and each land of this case were provided as joint security in securing both the Plaintiff and BB’s obligations and third parties’ obligations, and that BB operated a licensed real estate agent office around 1988-1990, there is a possibility that BB would have been in charge of managing the said six parcels of land closely related to each other.

6. Around October 2011, EE prepares a written statement including the Plaintiff’s intent to pay any balance under the instant sales contract in the future, as the other party, for the Plaintiff’s failure to pay the balance.

3) Therefore, the above assertion based on the premise of title trust added by the Plaintiff at the trial cannot be accepted.

3. 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.