Cho High Court Decision 2010Du3475 (Law No. 19, 2011)

The injured owner of the real estate is recognized as the actual owner.

Two houses registered under the name of the spouse at the time of the transfer of a house are already transferred, and the actual owner is separate, but there is no objective evidence such as financial data to recognize the payment of the price, and it is difficult to understand that the transfer income tax has not been completed because it is anticipated to impose the transfer income tax and it is difficult to pay it.

2011Gudan16875 Revocation of Disposition of Imposing capital gains tax

KimA

Samsung Head of Samsung Tax Office

December 23, 2011

January 13, 2012

1. The plaintiff's claim is dismissed.

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

On August 3, 2010, the Defendant revoked the imposition of capital gains tax of KRW 443,876,160 against the Plaintiff on August 3, 2010 (it is obvious that the Defendant is a clerical error of KRW 443,876,161 as stated in the complaint’s claim).

1. Circumstances of dispositions;

A. On March 7, 1996, the Plaintiff acquired the Gangnam-gu Seoul OOdong 000 O apartment 000 0000 m2 (the exclusive use area of 83.69m2, hereinafter referred to as “the first house”) and transferred it by voluntary auction on April 2, 2008, but did not report the transfer income tax.

B. At the time of the transfer of the above house, the Defendant: (a) applied the heavy tax rate of 50% to the two houses per household on August 3, 2010 under the premise that this BB, the spouse of the Plaintiff, owns O200 O20,000 O20,000,0000 (hereinafter “the second house of this case”) as O20, Dong-gu, Daejeon; (b) applied the heavy tax rate of 50% to the Plaintiff; and (c) imposed the instant tax disposition on the Plaintiff on August 3, 2010.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 3, and 4, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

B. On July 20, 1998, CC sold the instant second house to CC at KRW 25 million, and the sales price was set off against the claim of KRW 25 million of the lease deposit of CC, which leased the instant second house at the time. On the same day, CC issued to CC all documents necessary for the registration of the transfer of ownership, including a certificate of personal seal impression for real estate sales, but CC did not complete the registration of the transfer of ownership as to the instant second house because CC anticipated the purchase of the instant second house more larger than the instant second house and could not meet the requirements for non-taxation. Since the actual owner of the instant second house after July 20, 1998, the Plaintiff was the CC, and thus, at the time of the transfer of the instant second house, the instant disposition of taxation was unlawful on the premise that the Plaintiff was the owner of the instant second house at the time of the instant transfer of the instant house.

(b) relevant statutes;

Attached Form is as shown in the attached Form.

C. Determination

The Plaintiff’s above assertion is still the owner of the 2nd house of this case, but this CC transferred the 2nd house of this case to this CC on July 20, 1998 and settled the price. Since this 2nd house of this case had already been transferred to this CC on that day, this CC’s transfer is the actual owner. Thus, it is reasonable to acknowledge the Plaintiff’s assertion that this B made 5, 8, 9, 13, and 14 evidence (including each number), and that this court’s inquiry into the head of the O2nd office of the Gangnam-gu Seoul Special Metropolitan City OO2nd office on July 20, 198 and issued a certified copy of the 2nd house of this case’s 2nd house of this case’s 2nd house of this case’s 2008 house of this case’s 2nd house of this case’s 1 to 2009.

① Even after the expiration of 13 years from July 20, 1998, the ownership transfer registration of the second house of this case is in the future of this B.

2. There is no objective evidence, such as financial data to prove that thisB has received the lease deposit of KRW 20,500,000 from thisCC.

③ This case’s second house was continuously owned and managed in Canada with his family members including the Plaintiff, etc. on April 24, 1997, and if it was thought that this case’s second house was owned and managed in Canada, there is a high possibility that this case’s agent was appointed in Korea for lease and payment of property tax

4. The EastCC, as an agent of this BB on January 4, 2007, entered into a lease agreement on the second house of this case.

⑤ The above certificate of personal seal impression and resident registration certificate issued on July 20, 1998 by thisB is likely to have been used as a flexible material that can prove the right of representation of thisCC in relation to the lease of the second house in this case.

⑥ In accordance with the Plaintiff’s assertion, the married couple, after July 20, 1998, owned a house through a compulsory auction procedure on January 6, 2000. As such, it is difficult to understand that the Plaintiff did not complete the registration of ownership transfer of the second house of this case by predicting the acquisition of a house and the imposition of capital gains tax, in light of the empirical rule.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.