Incheon District Court 2012Gudan574 ( November 27, 2012)

Early High Court Decision 201Du4796 ( October 15, 2012)

It is reasonable to view that a house was donated without the intention of donation in order to avoid capital gains tax.

It is reasonable to view that the witness donated a house without the intention of donation in light of the following: (a) the Plaintiff returned the total purchase price of the donated house to the Plaintiff, which is the donor; and (b) the Plaintiff used a part of the price returned for the purchase of a car; and (c) it is difficult to obtain a donation without any charge from an interested person by asserting that

2012Nu39867 Revocation of Disposition of Imposing capital gains tax

HaAAA

Deputy Director of the Tax Office

Incheon District Court Decision 2012Gudan574 Decided November 27, 2012

May 30, 2013

June 20, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2008 against the Plaintiff on August 1, 201 is revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

This Court's explanation is based on Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act, because the reasoning of the court of first instance is the same as that of the corresponding part of the judgment of the court of first instance (as from the second to third part of the judgment of the court of first instance).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff was not a disguised donation to AB, but a donation was actually made, and the instant disposition was unlawful on a different premise, even if the Plaintiff was a single house owner at the time of transfer of the land outside the land of 000, which is the site, and the instant land was made on a different premise.

B. Relevant statutes

Attached Form 3 is as listed in the "relevant Acts and subordinate statutes".

C. Facts of recognition

1) The Plaintiff, a husband of thisCCC, had a house of 000, the Hancheon-si, Seocheon-si, the Plaintiff sold the instant house to the Korea Land and Housing Corporation (the Korean Land and Housing Corporation, and the same hereinafter) by consultation.

2) On September 9, 2008, the Plaintiff entered into a donation contract with ABB, a certified tax accountant, to the effect that the instant house is donated (hereinafter referred to as “instant donation”), and on September 10, 2008, the Plaintiff completed the registration of ownership transfer for the instant house due to the instant donation to AB, AB. On September 10, 2008, AB paid KRW 000 in total, including acquisition tax, registration tax, and fees for certified judicial scrivener, to AB, to AB, who is a certified judicial scrivener, in order to avoid heavy taxation of capital gains tax on two houses for one household.

3) On September 18, 2008, AB entered into a sales contract with the Korea National Housing Corporation to sell the instant housing and obstacles to KRW 0000 (=Housing KRW 000 + 000). On October 8, 2008, AB received the above sales amount from the Korea National Housing Corporation to the national bank account of BB, and on the same day, withdrawn the amount of KRW 000 from the cashier’s checks to the Plaintiff, delivered them to the Plaintiff, and transferred the remaining amount of KRW 000 (= KRW 000 - 000) to the Plaintiff’s single bank account. In addition, AB paid KRW 00,000,000, and paid KRW 00,000,000,000,000,000,000,0000,000,0000,000,000,000,000,000.

4) On September 17, 2008, the Plaintiff entered into a sales contract with the Korea National Housing Corporation to sell the instant land at KRW 000,000, and received the said sales price from the Korea National Housing Corporation to the Plaintiff’s account in October 10, 2008.

5) On November 17, 2008, the Plaintiff remitted KRW 000 to the national bank account of AB on November 17, 2008, and on November 18, 2008, the Plaintiff reported and paid the transfer income tax by applying the general tax rate to the transfer of the instant land. In addition, on December 1, 2008, the Plaintiff returned the lease deposit amount of KRW 00 to the MaximumO, a tenant of the instant housing.

6) AB appears in the first instance court as a witness, and “B” made a free donation of the instant house from the Plaintiff without any burden to return the deposit. ABB testified testified to the effect that “B was paid KRW 000 equivalent to the value of the instant house to ABB after receiving the deposit for lease on the instant house and obstacles. When receiving the deposit for lease on the instant house and obstacles, the Plaintiff returned the said deposit to the Plaintiff on the one hand, and BB was given free donation from the Plaintiff, and that there was no right to the said deposit for lease. The Plaintiff testified to the effect that “B was paid KRW 00 equivalent to the value of the instant house,” and that “B was paid KRW 00 on the other hand, on the other hand, because there was no cash to return the deposit for lease on the instant house and obstacles.”

[Grounds for Recognition] The facts without dispute, Gap evidence 2 through 9 (if ......, the number is included), Eul evidence 2 through 9, and Eul evidence 2 through 9, the testimony of the witness AB in the first instance trial, and the whole purport of the arguments

D. Determination

In light of the following circumstances, it is reasonable to view that the Plaintiff donated the instant house to ABB in collusion with ABB to avoid heavy taxation of capital gains tax on the Plaintiff, who is two houses for one household, in order to avoid heavy taxation of capital gains tax on the Plaintiff, even though the Plaintiff did not intend to donate the instant house to AB. Therefore, the instant disposition based on the premise is lawful, and the Plaintiff’s assertion is without merit.

1) AB testified that on the day of receiving 000 won of the purchase price for the instant housing and obstacles from the Korea National Housing Corporation, the said purchase price was returned to the Plaintiff, and that BB itself was deemed to have no right to the said purchase price. This is premised on the premise that the owner of the instant housing is the Plaintiff.

2) The Plaintiff asserted that the above purchase price was temporarily refunded from AB to return 000 won of the lease deposit for the instant housing, and the Plaintiff testified to the same purport. However, the Plaintiff used 000 won, most of the above purchase price returned from ABB as the purchase price for the instant housing, and the Plaintiff was paid 000 won of the purchase price for the instant housing and obstacles to the instant housing on October 10, 2008 after the date when the above purchase price was refunded from ABB. In addition, it seems that there was no reason to temporarily receive 000 won of the purchase price for the instant housing and obstacles from AB to pay the above lease deposit.

3) The Plaintiff asserted that if the instant house was genuinely donated to AB to AB, and that it was possible for ABB to bear the obligation to return the lease deposit for the instant house, the said obligation to return the lease deposit was still assumed by the Plaintiff, and the said obligation to return the instant house was donated to AB without any burden to AB, and AB also did not deduct the obligation to return the lease deposit from the value of the donated property upon reporting the gift tax for the instant house. The Plaintiff himself argues that “the cost of life was unsured due to the lack of any specific income, and there was a great concern for the preparation of the lease deposit to return to AB” (as of May 7, 2013, No. 3) and that such circumstances were that the Plaintiff donated the instant house to ABB without any burden to ABB without any charge.

4) On November 17, 2008, the Plaintiff paid 25,000,000,000 won to ABB, and on November 18, 2008, the following day, the Plaintiff reported and paid the transfer income tax on the land of this case on November 18, 2008. However, there is no objective evidence to acknowledge that the Plaintiff’s payment to AB was the price for the housing of this case that the Plaintiff donated to ABB, and the amount was paid to ABB before the Plaintiff’s tax return, and it is also different from the amount that the Plaintiff paid to AB in return for the housing of this case (00 won). In light of the circumstances, the Plaintiff could have paid AB the said money to AB as expenses or fees for tax treatment, and if so, it appears that the Plaintiff would not be related to the donation of this case, but that the Plaintiff would have paid the registration tax of this case to AB, and that it would not be related to the Plaintiff’s payment of the registration tax of this case.

3. Conclusion

If so, the plaintiff's claim should be dismissed due to its reason, and the judgment of the court of first instance is unfair, and the defendant's appeal is accepted, and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed.