Cho High Court Decision 2010Du2162 ( October 10, 201)

No evidence supporting that a title trustee is a trustee is legitimate in capital gains tax taxation.

With regard to the completion of the registration of ownership transfer due to sale, the purchaser is the actual owner of the real estate and the principal is the title trustee. However, since the reason of title trust is not clear and there is lack of objective evidence to presume the title trust relationship, the disposition imposing capital gains tax is legitimate.

Article 14 of the Framework Act on National Taxes

2011Gudan12279 Revocation of Disposition of Imposing capital gains tax

KimAAA

Head of Mapo Tax Office

July 25, 2012

August 22, 2012

1. The plaintiff's claim is dismissed.

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

The Defendant’s imposition of KRW 000 of transfer income tax for the year 2006 against the Plaintiff on November 18, 2009 and KRW 000 of transfer income tax for the year 2007 shall be revoked.

1. Details of disposition;

A. On March 22, 2002, the Plaintiff’s father KimBB completed the registration of ownership transfer on the ground of donation in the Plaintiff’s name, and the return and payment of gift tax were made on February 22, 2006, the ownership transfer registration was completed on the ground of sale in the name of the Plaintiff, and the ownership transfer registration was completed on February 22, 2006, and the second real estate was completed on February 27, 2007.

B. On November 18, 2009, the Defendant discovered that the Plaintiff did not report the transfer income tax following the transfer of the first and second real estate (hereinafter “each of the instant real estate”), and rendered each of the instant dispositions to the Plaintiff on November 18, 2009, the transfer income tax of KRW 000 for the first and the second real estate of this case, and KRW 000 for the transfer income tax of KRW 207 for the second real estate of this case.

C. The Plaintiff underwent the pre-trial procedure.

[Ground of Recognition] The non-contentious facts, Gap evidence 1 to 3, Eul evidence 1 (including each number), and the whole purport of the pleading

2. Whether the disposition is lawful;

A. Summary of the plaintiff's assertion

' The Plaintiff did not have donated each of the instant real estate from KimB. In fact, KimB sold each of the instant real estate to the GCC on September 4, 2001. The GCC was a multi-house owner, and it is difficult for the KCC to register the ownership transfer under its own name, and the Plaintiff’s mother requested ParkE to register the ownership transfer of each of the instant real estate due to donation to the Plaintiff. Accordingly, the actual owner of each of the instant real estate is KCCC.

The Plaintiff, which was merely a title trustee, did not report the transfer of the instant real estate 1 to the GCC, the title truster, and the registration of the transfer of the instant real estate 2 at the request of the GCC, is merely a way to register the transfer of the instant real estate 2, and there is no profit gained by the Plaintiff. Therefore, the Plaintiff’s disposal of the instant real estate 1 on the ground of the transfer of each of the instant real estate

B. Determination

Article 14(1) of the Framework Act on National Taxes provides that "if the ownership of income, profit, property, act, or transaction subject to taxation is only nominal and there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable as a taxpayer," and as such, there is a burden to prove that there is a person who has actually acquired income only from his own name, and there is a separate person who is in fact responsible for the burden of proof. The plaintiff's ground for acquisition is stated in the copy of each real estate of this case as a gift, and the voluntary declaration on gift tax has been made as mentioned above, the plaintiff must prove the above assertion. However, according to the overall purport of the evidence and arguments stated in Articles 4 through 13, and 15 through 17, it is difficult for the plaintiff to find that the real estate was under the name of the CC, and that there is no other objective evidence that the other real estate was under the name of the CC, including the real estate transferred from the financial account of the CC, and that the other real estate was under the name of the CC and the CC's obligations.

3. Conclusion

Thus, the plaintiff's claim is dismissed as there is no ground.