Cho Jae-2014- Daejeon-4264 ( November 06, 2014)

Under the substance over form principle, the Plaintiff is liable to pay capital gains tax.

Even if the Plaintiff did not own real estate, the Plaintiff is a person liable to pay capital gains tax under the substance over form principle.

Article 14 of the Framework Act on National Taxes

Daejeon District Court-2015-Gu Group-153 (2015.08)

남@@

O Head of tax office

oly 2015.17

15.05.08

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 186,791,230 for the Plaintiff on July 1, 2014 is revoked.

1. Details of the disposition;

A. On February 19, 2001, the registration of transfer of ownership was completed on October 2, 2004 on the ground that the registration of transfer of ownership was completed on February 2, 2004 on the ground that the registration of transfer of ownership was completed on January 2, 2004 due to the voluntary auction, the registration of transfer of ownership was completed on October 4, 2007 for the sale by compulsory auction and the registration of transfer of ownership was completed on October 4, 2007 for the reason that the ownership was sold by compulsory auction.

B. On January 2, 2009, the director of the OO head of the tax office imposed on the Plaintiff the disposition of imposition of KRW 328,870,760,00 for the transfer income tax (including additional tax; hereinafter the same shall apply) for the real estate of this case as KRW 1,650,000 on the ground that “the Plaintiff has held title trust to KS.”

C. On July 1, 2014, the Defendant issued an increase in the acquisition value of the instant real estate as KRW 1,411,100,000 on the ground that “the Plaintiff made a title trust of the instant real estate to Hnn and KSH in order” (hereinafter referred to as “instant disposition”) to the Plaintiff, thereby making an increase in KRW 186,791,230 (hereinafter referred to as “instant disposition”).

[Ground of recognition] Facts without dispute, Eul evidence Nos. 1 to 4, Eul evidence No. 6-1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, the instant disposition is unlawful.

(i) the first argument;

The Plaintiff, who is eligible to impose capital gains tax on Hnna KSH, may not be subject to capital gains tax on the Plaintiff, since the Plaintiff was not an owner of the instant real estate, but did not take gains from transfer.

(ii) the second argument;

The 5-year extinctive prescription of the instant disposition was expired, and Hnn and KSH cannot be deemed to have concealed property in their own name, and thus the exclusion period of 10-year is not applicable. Hnx transferred the instant real property to KSH, the exclusion period of 10-year period has expired from January 2, 2004.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

1) As to the first argument

According to the purport of Gap 1, 3 through 6, Eul evidence 6 Eul 2, Eul 7 through 9, Eul 2, Eul 2, Eul 7 through 2, Eul 2 and the whole pleadings, the plaintiff was delinquent in paying 1,298,060,000 won for global income tax and value-added tax, which were established from December 31, 1996 to December 31, 199, and 1, 70, 207, 1,41,000 won were paid in 1,41,10,000 won and 60, 200, 206, 200, 206, 200, 306, 206, 200, 306, 206, 30,000 won and 40, 206, 30,000 won and 7,000,000 won, 2,000.

KSH recognizes the rights that Korea has received as dividends and does not raise any objection thereto. Korea waives the remainder of its claims. It can each recognize the fact that the ruling of recommending reconciliation was rendered on March 26, 2010 and became final and conclusive.

According to the above facts, even if the Plaintiff did not own the real estate in this case, and the Plaintiff bears the purchase price of the real estate in this case and the transfer income is actually attributed to the Plaintiff. Therefore, the Plaintiff is liable to pay transfer income tax in accordance with the principle of substantial taxation (see Supreme Court Decision 2009Du19564, Nov. 25, 2010). The acquisition price was KRW 1,411,100,000, and the transfer price was KRW 2,568,000,000.

Therefore, the plaintiff's first argument is without merit.

2) As to the second argument

The legislative intent of Article 26-2(1) of the former Framework Act on National Taxes (amended by Act No. 8830, Dec. 31, 2007) is to extend the exclusion period for the imposition of national taxes to 10 years in cases where, in principle, the exclusion period for the imposition of national taxes is five years, but it is difficult for the tax authority to discover the taxation requirement of national taxes or where there is any unlawful act such as creating false facts, etc., for the prompt determination of tax-related relations, it is difficult to expect the exercise of the imposition right by the tax authority as it is difficult for it to find out the omission report. Therefore, “Fraud and other unlawful act” under Article 26-2(1) of the former Framework Act refers to deception and other active act that makes it impossible or considerably difficult to impose and collect taxes (see Supreme Court Decision 2013Du7667, Dec. 12, 2013).

According to the above facts, since the Plaintiff completed the registration of ownership transfer under the name of KSH that is null and void for the purpose of tax avoidance, this constitutes a case of evading national taxes by fraud or other unlawful acts, and thus, the exclusion period of imposition of capital gains tax is ten years. Moreover, since the time when the Plaintiff transferred the instant real estate to KS was not 2007, the time when the transfer of ownership registration was completed to KS, but 2007, the instant disposition was not 10 years after the exclusion period. On the other hand, the instant disposition was a tax imposition disposition, and the statute of limitations is applicable to the collection disposition, and there is no room to apply the instant disposition, which is a tax disposition.

Therefore, the plaintiff's second argument is without merit.

3) Sub-decisions

Therefore, the instant disposition is lawful.

3. Conclusion

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

May 8, 2015