National Tax Service Review and Transfer 2012-0125 (Law No. 18, 20129)

It is recognized that the fact of title trust of one house has been actively held in the status of two houses.

It is reasonable to deem that the title trust of one house has been actively held in the possession of two houses, and that the instant house, the holding period of which is longer formally due to title trust, was the object of non-taxation, but it is impossible to impose and collect capital gains tax on the instant house or has made it considerably difficult to impose and collect capital gains tax on it, and that 10 years have passed from the exclusion period of imposition.

2012Guhap2212 Revocation of Disposition of Imposing capital gains tax

AAA

Chuncheon Director of the Tax Office

April 12, 2013

April 26, 2013

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing capital gains tax of KRW 000 against the Plaintiff on January 2, 2012 is revoked.

1. Details of the disposition;

A. On December 30, 1994, the Plaintiff, who acquired on December 30, 1994, issued an OOOO apartment complex 000 000 0000 0000 000 000 000 (hereinafter referred to as the “first house of this case”) under the Plaintiff’s possession on September 30, 2003, and issued a registration of transfer on September 30, 2003, OO00 single house (hereinafter referred to as the “second house of this case”) owned by the Plaintiff on August 21, 1995, owned by the Plaintiff on September 30, 200.

B. The Plaintiff filed a preliminary return of capital gains tax on November 5, 2003 on the second house of this case, but did not file a preliminary return of capital gains tax on the first house of this case.

C. On August 26, 2008, the Plaintiff filed a transfer registration for the instant second house under the name of the Plaintiff on the grounds of sale, and on December 31, 2009, Kim H filed a transfer registration for the said house on the grounds of sale.

D. Accordingly, on January 2, 2012, the Defendant rendered the instant disposition imposing capital gains tax of 000 won on the instant housing No. 1 on the ground that the instant housing No. 2 was not subject to non-taxation, since the transfer of the instant housing No. 2 between the Plaintiff and Ansan was based on title trust and is not subject to transfer under the Income Tax Act.

[Ground of Recognition] The non-contentious facts, Gap evidence 1, 2, and Eul evidence 3, and the whole purport of the pleading

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) As to title trust

① When the Plaintiff transferred the instant house 2 to Ansan, he continuously resided in the second floor of the instant house in the same household in the same household with KRW 000,000, the Plaintiff acquired the obligation to refund the rent deposit for the first floor and paid KRW 000,000 by means of receiving the Plaintiff’s rent in lieu of Ansan for 16 months, and ② on March 5, 2005, the Plaintiff took out 00,000 won from the Bank in the instant house as collateral and set up a collateral security right to the said bank with KRW 00,000 to secure the claim to return the rent deposit against Ansan, and ③ on April 17, 2007, the Plaintiff was established a collateral security right to the instant house. Considering the above circumstances, the Plaintiff imposed the transfer income tax on the instant house under title trust on the premise that the Plaintiff actually transferred the instant house to Ansan, and the instant house under title trust was not unlawful.

(ii) the purpose of the exclusion period; and

Where a person liable to pay capital gains tax fails to report the tax base of capital gains tax within one association member's relocation right, the exclusion period of capital gains tax is seven years from the date on which the capital gains tax may be imposed, and the capital gains tax following the transfer of the first house was imposed on January 2, 2012 after seven years from June 1, 2004, which was the date on which the capital gains tax could have been imposed. Accordingly, the instant disposition was imposed after the exclusion period expired, and is unlawful

(b) Related statutes;

Attached Form is as shown in the attached Form.

C. Determination

1) Determination on whether title trust is held

In light of the following circumstances, and ① the Plaintiff acquired on August 21, 1995, the second house of this case was transferred on September 30, 2003 under the name of Ansan, five years later, and again registered on August 26, 2008. ② The sales contract (Evidence B No. 4) that the Plaintiff prepared the second house of this case to Ansan at the time of sale, was prepared on September 15, 2003, and was prepared on September 29, 2000, and on September 29, 2000, to pay 20G rent for the remainder of 2G rent for the remainder of 20G rent for the purpose of establishing a new house, and there was no separate special agreement on the payment of rent for the remainder of 20G rent for the remainder of 20G rent for the purpose of establishing a new house.

2) Determination as to whether the exclusion period has expired

A) Whether the exclusion period for imposition is seven years or more

Article 26-2 (1) of the Framework Act on National Taxes provides for the exclusion period of national tax imposition, and when a taxpayer evades national tax or obtains tax refund by fraudulent or other unlawful means, it shall be for 10 years (No. 1) from the date on which the taxpayer is entitled to impose the national tax, and for 7 years (no. 2) from the date on which the taxpayer is entitled to impose the national tax, and for 5 years (no. 3) from the date on which the taxpayer is entitled to impose the national tax, and for 10 years from the date on which the taxpayer is entitled to impose the transfer income tax, the "Fraud or other unlawful act" under Article 26-2 (1) 1 of the Framework Act on National Taxes can be interpreted as uniformly with the "Fraud or other unlawful act in the crime of tax evasion" under Article 9 (1) of the Punishment of Tax Evaders Act, and the "Fraud or other unlawful act" under Article 9 of the Punishment of Tax Evaders Act, which means 20 years from the date on which the tax base is not imposed.

B) Whether the instant disposition was made within the exclusion period of imposition

Article 12-3 (1) of the former Enforcement Decree of the Framework Act on National Taxes (amended by the Presidential Decree No. 19893, Feb. 28, 2007) provides that "the day on which national taxes may be imposed under the provisions of Article 26-2 (3) of the Act shall be the day falling under any of the following subparagraphs, and subparagraph 1 provides that "in case of a national tax on which the tax base and tax amount are reported, it refers to the day following the due date for submission of the tax base and tax amount of the national tax or the due date for submission of the tax return. In addition, Article 110 (11) of the former Income Tax Act (amended by Act No. 9897, Dec. 31, 2009) which was in force at the time of transfer of the first house of this case, the transfer income tax base shall be reported to the head of the district tax office having jurisdiction over the place of tax payment from May 1 to 31, 2007, and the period of imposition of transfer income tax shall be 10.3 years after 10.

C) Therefore, the instant disposition taken on January 2, 2012 was lawful, and the Plaintiff’s assertion on this part is without merit.

3. Conclusion

Then, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.