Cho Jae-2015-west-5822 (2016.02)

It is legitimate to impose capital gains tax on husband who is the actual owner of real estate according to substance over form principle.

In accordance with the principle of substantial taxation, a person who actually controls and manages the subject of taxation shall be a taxpayer, and since a person who actually exercises his/her ownership by controlling and managing all the matters concerning the acquisition, management and disposal of the subject of taxation of this case shall be the husband who is the truster, it is legitimate to impose capital gains

Article 14 of the Framework Act on National Taxes

2016Guhap720444 Revocation of Disposition of Imposing capital gains tax

MaximumO

The head of Yangcheon Tax Office

June 22, 2017

August 10, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 1,909,704,450 (including additional tax) for the year 2011 rendered to the Plaintiff on June 4, 2015 is revoked.

1. Details of the disposition;

A. On August 31, 2002, the Plaintiff, the △△△△△△, purchased a building of 00-00 OOO-dong 00,607 square meters and 8-story private teaching institutes on the ground thereof (hereinafter “instant real estate”) from RedO and four other on July 20, 201, and purchased KRW 5 billion from OO to OO, and did not file a transfer income tax on KRW 9.2 billion on July 20, 201.

B. The Defendant conducted a tax investigation on the instant real estate from January 30, 2015 to May 19, 2015, and determined and notified the Plaintiff of capital gains tax of KRW 1,909,704,450 (including additional tax) accrued in June 4, 2015 on the ground that the instant real estate was held in title trust with the largest △△△△△△△△△, and the actual owner was the Plaintiff.

C. The Plaintiff appealed and filed an appeal with the Tax Tribunal on May 2, 2016, but the claim was dismissed.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 8, Eul evidence 1 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff, as the actual owner of the instant real estate, should prove that it was title trust to the △△△△△△△. The △△△△△△ is the actual owner of the instant real estate, who is the Plaintiff’s spouse, and △△△△△△△△ KRW 501,502 and 503 (hereinafter “△△△dong”) sales price of KRW 80,000,000, ② KRW 129-5, △△△△△△-dong 129-5, △△△△△△△△△, acquired with the name of the △△△△△△△△△△△△, KRW 1,50,000,000 from KRW 1,000,000, KRW 700,000,000 from KRW 1,50,000,000 from KRW 20,000,000,000 from KRW 1,50,000,00.

On the other hand, the Defendant, on the ground that the Plaintiff is the actual owner of the instant real estate, cited the counterclaim, the written answer of ParkO, the written statement of the head of the management office of the instant real estate and the written statement of related persons, such as the head of the management office of the instant real estate, etc. on the ground that the Plaintiff is the actual owner of the instant real estate. The above written counter statement is merely an exaggeration to obtain favorable status in division of property, and there is no objective evidence supporting the content of the ParkO’s written answer, and there is no objective evidence supporting the content of the written answer of ParkO, and the statement of related persons is merely the management of the instant real estate, and it does not constitute evidence that the actual owner of the instant real estate was the Plaintiff. Therefore, insofar as the Defendant

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

1) The relationship between the Plaintiff and GaO

A) On September 11, 199, the Plaintiff and Extraordinary reported marriage on July 31, 200, and there was a child of May 17, 2001 and on November 24, 2003. Since the latter part of 2009 as a matter of studying children around 2009, 170 days for the year 2009, 54 days for the year 2010, and 72 days for the year 2012, 201.

B) The details of real estate acquired by the Plaintiff and Park O during the marriage are as follows.

Classification

Location

Title holder

Date of acquisition

Transfer Date

Jinay

1

△△△△-dong 00-00

GaO

d February 1, 2001

December 26, 2001

Transfer Value

(410 million won)

2

OOOO 00-00 square meters (00 square meters for a building, 00 square meters for a building)

＊2001. 5. 26. 신축

Maximum △△△

August 31, 2002

July 20, 201

Key Real Estate

3

OOOO 00-00 square meters (00 square meters in a building site, 00 square meters in a building)

Maximum △△△

July 10, 200

August 13, 2003

△△ Dong building

4

OOOO 00-00 square meters (00 square meters in a building site, 00 square meters in a building)

GaO

May 30, 2006

December 4, 2014

O building (transfer by gambs prior to mixed lawsuits)

5

OOOO 00-00 square meters (00 square meters for a building, 00 square meters for a building)

＊2001. 5. 26. 신축

GaO

September 20, 2007

6 April 2015

△△빌딩(재산분할⇒청구인)

6

OOOOOO-dong 00-00

GaO

January 24, 2006

-

(재산분할⇒청구인)

7

OO Aven, OO, Canada

GaO

209

-

(재산분할⇒박OO)

다) 박OO은 2014. 4. 22. 원고를 상대로 OO가정법원 20XX드단0000호로 이혼 및 위자료 등 청구의 소를 제기하였고, 원고는 2014. 12. 29. 박OO을 상대로 위 법원 20XX드단XXXX호로 이혼 등 반소를 제기하였는데, 그 소장 및 반소장의 주요내용은 다음과 같다(이하 위 각 소송을 통틀어 '이 사건 이혼소송'이라 한다).

/ The head of GunO

- immediately after marriage, the Plaintiff: (a) asked the name of the Magdong Private Teaching Institutes to be good when the Magdong Private Teaching Institutes was entrusted; (b) opened and operated the Magdong in the name of the Magdong Private Teaching Institutes; and (c) on September 21, 2001, the Magdong was purchased in the name of the △△△△△△△, a large number of Magdong, and

- The plaintiff and the plaintiff had conflict from the beginning of marriage, but they were born on May 17, 2001, and November 24, 2003, and were paid by giving birth to two children on November 24, 2003, and her attention only to childcare. It was too difficult to know that the birth relationship frequently occurred and the plaintiff reached her delivery separately.

-2008년부터 2010년 사이 박OO은 아이들과 함께 캐나다 XXX로 유학을 갔다가 2011년경 원고가 경제사정이 좋지 않다면서 한국으로 돌아올 것을 권유하여 귀국하였는데, 당시 사정이 너무 좋지 않아 박OO 명의로 개설한 ▣▣어학원, XX어학원 등을 폐업할 수밖에 없었고, 결혼 초 큰시누이 최△△ 명의로 구입한 ◇◇ 건물(이 사건 부동산)을 급매로 처리하고, 다시 커피사업에 전념하면서 지금에 이르렀다. XX어학원은 결국 본사에 넘기면서 남은 부채는 박OO 명의로 되어 있고, 이를 원고가 수습 중이다.

m. Plaintiff Counterclaim

-원고는 1997년경 경제적인 사유로 이혼을 하고, 생업인 학원사업에 매진하였는데, 1999년경부터 매월 1,000만 원 정도의 흑자를 얻었고, 그 무렵 원고의 ▣▣ 학원이 ◆◆ 영어학원을 인수하면서 강사인 박OO도 채용하게 되었는데 인수작업 중 친분이 쌓여 결혼에 이르게 되었다.

-The plaintiff, around 200, operated 3 private teaching institutes, made an average monthly profit of KRW 50 million, constructed a private teaching institute building on the third floor above the ground by making it known of its profits, and made it a elb to operate the private teaching institute on its own building by constructing the private teaching institute building on the third floor above the ground. On or around 2002, the plaintiff had a considerable cash while taking over the plaintiff's Dol Private Teaching Institute at the head office around 2002.

-After that, around May 2006, the Plaintiff acquired OO-dong O-dong 00-00 8 stories out of 1.5 billion won from △△ Private Institutes, and purchased the same 319-26 land in 2007 and newly constructed △△ building.

-LoO living in Canada from 209 to 3 years from 2009 on the ground of education of son, and the Plaintiff purchased the high-class housing at the time of 1370,000,000 won, but thereafter, the Plaintiff closed down his school from 2010 to 2 years from 2012 on June 2012 on the ground that he was unable to recover the principal of the money invested in the Chinese Automobile Import Company, and eventually, she returned home on the second day of 2012 on August 2012, 200 to obtain citizen rights, and Gao returned to Korea on the second day of 2012.

- The plaintiff had a bad credit standing around the time of IMF, and succeeded in the private teaching institute business. GamO was an instructor of the 25-year-old private teaching institute at the time of marriage and did not know about the management of the private teaching institute. While the plaintiff had a position of the president after marriage, the plaintiff's common property of the plaintiff and GamO was entirely formed by the plaintiff's economic activity by operating the private teaching institute, and the contribution of GamO was made by GamO as a family head office, to the extent that it managed the family affairs and raises the child, it does not exceed

-The plaintiff has been registered in the name of ParkO because most of the most of the property was registered in the name of ParkO because of the recent years of bad credit, and ParkO arbitrarily disposed of the O building and XX building, the main property of which is recently divided, and the degree of contribution of the plaintiff is at least 60%, so the other couple's joint property should be divided into the plaintiff.

D) In the instant divorce lawsuit, on February 4, 2015, the Plaintiff and POO divorceds with respect to the division of property on a divorce basis. The PO established a conciliation that “OO shall implement the procedures for ownership transfer registration regarding OO building and OOO-000, and the Plaintiff shall delegate all the authority over the sale and the receipt of the sales price to OO, and the sales price shall belong to OO.”

2) As to the source of the instant real estate acquisition fund

가) ◇◇동 건물에 관하여는 2001. 2. 1. 박OO 명의의 소유권이전등기가 마쳐졌다가 2001. 12. 26. 박XX에게 양도되었고, XX동 부동산 중 토지는 원고와 박OO이 혼인신고를 하기 전인 2000. 7. 10. 최△△ 명의로 소유권이전등기가 마쳐졌고, 그 지상 신축건물은 2001. 5. 26. 완공되었으며, XX동 부동산은 2003. 8. 13.경 이▣▣에게 양도되었는데, 이▣▣는 이 사건 부동산 매매 관련 모든 업무를 원고와 하였다는 내용의 진술서를 작성하였다.

B) From October 1, 1995 to November 23, 1998, the representative of the △△△△△, the spouse of the Plaintiff’s Haak, from August 11, 1999 to September 9, 2002, HaakO, the Plaintiff’s spouse from September 9, 2002 to January 15, 2008, and the Plaintiff’s spouse was the same as the Plaintiff’s spouse, and from August 11, 1999 to September 28, 2002, the △△△△△△△ was present at the Plaintiff’s △△△△△△△△, the Plaintiff’s △△△△△△, the Plaintiff’s spouse of the Plaintiff’s △△△△△△△, and the representative of the △△△△△△△△ was a witness of the Plaintiff’s △△△△△, the Plaintiff’s spouse of the Plaintiff’s △△△△ and the Plaintiff’s testimony.

3) As to the location of the instant real estate transfer proceeds

As a result of the account tracking on KRW 1.8 billion in the net proceeds of the instant real estate, most of the funds were used as operating expenses or investment funds of a private teaching institute or other company operated under the name of GaO at that time. A variety of business registration and business closure have been continued from around 2009 to 2012, during which GaO had been residing in Canada as shown in the table, as shown below, during the period from 2009, during which GaO had been residing in Canada. During the above period, all the parties to a business operated under the name of GaO was in-to-house and all the parties to a business or employees, etc., who are the business owner of GaO was in charge of the business, and GaO, the nominal owner

Trade Name

Type of Business

Opening date of business

Closure

Location of place of business

OFR LOF lease

Lease

d February 1, 2001

January 21, 2002

OO-si OO-dong 00-00

△○○ Research Institute

Private teaching institutes

9, 2002

January 15, 2008

△△△△△-dong 00-00

DolOO Track Institute

Private teaching institutes

November 7, 2002

4, 2006

OO-si OO-dong 00-00

OOOO

Lease

6.1

December 31, 2014

OO-si OO-dong 00-00

△ Dacs

Dac dykes

December 4, 2006

May 31, 2007

OO-si OO-dong 00-00

△鹬

Franchises

August 16, 2007

June 18, 2012

OO-si OO-dong 00-00

OOAR

Private teaching institutes

November 1, 2007

2, 208.7

OO-si OO-dong 00-00

♠♠

Lease

February 15, 2008

February 4, 2015

OO-si OO-dong 00-00

▽▽Dac

Dac dykes

o October 31, 2008

August 20, 2010

OO-si OO-dong 00-00

▽△△△ Private Teaching Institutes

KINAR

December 22, 2008

October 28, 2010

OO-si OO-dong 00-00

■■

Number of life

February 10, 2009

3, 2010.6

OO-si OO-dong 00-00

▼▼ 학원

KINAR

February 10, 2010

August 31, 2012

Ⅳ-Si ▽▽-dong 00-00

Governing Province

Advertisement Agency

February 12, 2010

June 21, 201

OO-si OO-dong 00-00

★★

Sub-department

August 13, 2010

September 30, 2011

OO-si OO-dong 00-00

Macker Zate

KINAR

oly 29, 2010

April 17, 201

OO-si OO-dong 00-00

♤♤ 커피

Dac dykes

November 20, 2013

February 28, 2014

OO-si OO-dong 00-00

4) Statement of the person involved in the instant real estate

이 사건 처분에 관한 세무조사 과정에서, 박OO은 '원고가 누나 최△△의 명의를 빌려 이 사건 부동산을 매입한 것으로서 본인은 월 300만 원 가량의 생활비로 생활하였을 뿐 박OO 명의 임대료 관리계좌와 사용내역, 양도대금에 대하여는 원고와 이XX가 관리했기 때문에 전혀 아는 바가 없다'고 진술하였고, 원고의 매형이자 이 사건 부동산 등 원고의 자산관리 업무를 맡았던 김XX는 '원고가 누나의 명의로 이 사건 부동산을 인수하였고 박OO은 주로 해외에 체류하였으며 국내에 있을 때에도 박OO 명의의 사업에 박OO이 개입한 적은 전혀 없고 원고가 실제 사업을 운영하였다'고 진술하였으며, 이 사건 부동산의 관리소장이던 이▣▣은 '이 사건 부동산의 실제 소유자는 원고로서 회장이라고 불렀고, 최△△은 원고의 누나로 알고 있을 뿐 본 적이 없으며, 박OO은 원고의 처로 알고 있으나 이 사건 부동산 관련 업무를 한 적은 없다'고 진술하였고, 이 사건 부동산 양수인 이XX의 아들인 이◎◎는 '이 사건 부동산 양도 당시 원고와 최△△, 원고의 직원이 나왔고, 거래와 관련하여서는 원고와 통화하였다'고 진술하였다.

[Ground of Recognition] Facts without dispute, Gap evidence 1 through 6, 9 through 17, Eul evidence 2 through 17, 19 through 26 (including each number), the purport of the whole pleadings, and the purport of the whole pleadings

D. Determination

1) Article 14(1) of the Framework Act on National Taxes declares the principle of substantial taxation by stipulating that “if the ownership of income, profit, property, act, or transaction subject to taxation is merely nominal and there is another person to whom such income, profit, property, act, or transaction belongs, the person to whom such income, profit, or transaction belongs shall be liable to pay taxes.” Therefore, if there is a separate person who substantially controls and manages the income, profit, property, act, transaction, etc. different from the nominal owner, the nominal owner shall not be the person to whom such income, profit, or appearance belongs, but the person who substantially controls and manages the relevant taxable object shall be the person to pay taxes pursuant to the principle of substantial taxation. In addition, the determination of whether it falls under such a case should be made by comprehensively taking into account various circumstances, such as the circumstance leading to the use of the nominal owner, the degree and scope of the involvement of the nominal owner, internal responsibility and calculation relationship, and the existence of independent management and disposal authority over the taxable object. In principle, the tax authority bears the responsibility to prove the existence and tax base of taxation.

2) Comprehensively taking into account the facts acknowledged earlier and the purport of the entire pleadings, the following circumstances revealed: (a) exercise substantial ownership of the instant real estate by controlling and managing the overall matters concerning the acquisition, management, and disposal of the instant real estate; and (b) a person who has held title trust to the △△△△△△, is deemed the Plaintiff; (c) therefore, the instant disposition is lawful and the Plaintiff’

① The source of the sales price of the instant building claimed by the Plaintiff can be largely divided into ○○ Dong building, XX Dong real estate, and Magdong private teaching institutes. Of these, the O-dong building was acquired on February 1, 2001, when about one year and five months have elapsed from the marriage date of the Plaintiff and YO, and on July 10, 200, when about ten (10) months have elapsed from the marriage date (the building was newly built on May 26, 2001), and the O-dong real estate was acquired on July 10, 200, when about twenty (25) years have passed since 25 years of age at the time of marriage and worked as an instructor of a private teaching institute without any property, and thereafter after marriage, on November 24, 2003, 200 had not been able to obtain the above real estate funds by itself.

② □□어학원은 1995. 10. 1.부터 박OO 이전 원고의 처이던 박▩▩이 대표자로 등록되어 있다가 1999. 8. 11.부터는 원고의 지인 하OO, 2002. 9. 9.부터는 박OO이 대표자로 등록되었는데, 학원사업을 하다가 신용불량상태에 빠진 원고가 처의 명의를 빌려 □□어학원을 운영하여 온 것으로 보인다. 반면 박OO은 원고와 결혼하기 전에는 학원운영의 경험이 없는 학원강사였고, 적어도 이 사건 부동산 취득시인 2002. 8. 31. 이전에는 앞서 본 것과 같이 임신, 출산 및 육아로 인하여 활발한 경제활동을 할 수 있는 상황이 아니었다. 즉 이 사건 부동산 취득자금의 출처인 OO동 건물, XX동 부동산, □□어학원의 실질적 소유자는 모두 원고였으므로, 결국 이 사건 부동산은 원고의 자금으로 취득한 것이다.

③ On July 20, 201, the instant real estate was transferred to XX, and the transfer proceeds were used as funds for operation of various businesses that had registered business under the name of Gao around that time. Gao did not participate in the instant real estate transfer, and around October 2009, left Korea and stayed in Canada with most of children until around that time, and stayed in Korea. As such, during the instant divorce lawsuit, the actual operator of the instant real estate business that had registered business under the name of Gao was not Gao during that period, seems to have been the Plaintiff, not GaO. The Plaintiff and GaO returned to Korea by soliciting the Plaintiff to return to Korea on the condition that the economic situation at that time was not good, and thus, Gao did not have any choice but to discontinue the business under the name of Gao in the name of Gao, etc., which was used by the Plaintiff at the time of the instant real estate transfer proceeds. In other words, the Plaintiff’s real estate transfer proceeds was the real estate transfer proceeds in the name of Gao.

④ In the course of the tax investigation, most interested parties, including the Plaintiff’s employees, the transferee of the instant real estate or the manager of the instant real estate, except dives, stated that the actual owner of the instant real estate was the Plaintiff. The Plaintiff’s leakage, and the △△△△△△△, the title trustee of the instant real estate, stated that the actual operator of the △△△△ Institute, which was the source of the funds to acquire the instant real estate, was ParkO and was merely an employee of the Plaintiff, but the reason was the reason that the ParkO was more well, more favorable in English, more favorable in school punishment, and very high, and the reason was insufficient. Furthermore, the Plaintiff’s statement of YEE was dealt with with by delegation from the GaO to the GaO, based on the content of the statement by other interested parties and the fact that the YO resided resided in Canada for a considerable period of one year or longer after the transfer and transfer date of the instant

⑤ As alleged by the Plaintiff, in cases where ParkO-O primarily created an economic division by running a private teaching institute business, this is an absolute favorable circumstance in the division of property, and there is no possibility that ParkO did not assert it in the instant divorce lawsuit. Rather, ParkO alleged to the effect that he/she was responsible for the childcare of two children and that he/she was living only as the occupational father. The Plaintiff also argued that the property was entirely formed by the Plaintiff as the private teaching institute business, etc., and that ParkO was living as the occupational father, and that the degree of contribution of ParkO cannot exceed 40%, and that division of property was made in accordance with such assertion.

(6) Even if it is assumed that ParkO actually operated some business for a certain period of time after his children grow up, and that there was a difference during the period of possession of the pertinent real estate, it is natural for the Plaintiff and ParkO to have been engaged in the same private teaching institute business and all economic activities were conducted in the name of ParkO due to the Plaintiff’s bad credit standing, the exchange of funds between the two cannot be completely cut off, and as seen earlier, the acquisition and transfer of the instant real estate is subject to the Plaintiff’s control and management. In addition, the mere fact that part of the rent of the instant real estate was attributed to ParkO cannot be deemed as the ownership of the instant real estate.

E. Sub-committee

Therefore, the plaintiff's assertion is without merit, and the disposition of this case is legitimate.

3. Conclusion

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