Whether a disposition is an important and apparent defect in the imposition of capital gains tax;

Even if it is assumed that the transfer of the land in this case did not take gains from the transfer, or that the ownership was transferred in the form of an intermediate omission registration as alleged by the Plaintiff, the defect in the disposition in this case is apparent.

Article 94 of the Income Tax Act: Scope of Transfer Income

Incheon District Court 2017Gudan302 Nullification of Transfer Income Tax Imposition Disposition

○ ○

○ Head of tax office

2017.09.19

oly 31, 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 division of KRW 139,321,234 for the transfer income tax belonging to the year 2008 against the Plaintiff on December 1, 2010

Recognizing that a disposition is void.

1. Details of the disposition;

A. On August 12, 2004, the Plaintiff acquired 3,328 square meters of woodland 3,328 square meters in ○○○○○○-gun, ○○○○○○○-gun, ○○○○○, 39 square meters (hereinafter “instant land”). On February 5, 2008, the Plaintiff transferred the instant land to ○○○○.

B. Upon the Plaintiff’s failure to report capital gains tax, the Defendant issued a disposition of imposition of capital gains tax of KRW 184,071,213 to the Plaintiff on December 1, 2010 (hereinafter “instant disposition”) with the transfer value of the instant land as KRW 588,50,00,000, which is the transaction value on the real estate injury, and the acquisition value as KRW 118,93,383, which is the conversion value based on the standard market price.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 2 and 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The disposition in this case is null and void since the Plaintiff did not obtain gains from the transfer of the land in this case due to the sale of the land in this case. Even if not, on March 17, 2006, the land in this case was sold to the "○○○○ Construction Co., Ltd. (Representative Kim○)," and the above company, which was scheduled to develop the land in this case as a penta site, had the registration of ownership transfer to the "○○○" in the middle omission registration form on the wind, and the taxpayer of the transfer income in this case shall be the "○○ Construction Co., Ltd." and thus the disposition in this case imposed on the Plaintiff

B. Determination

1) Generally, a taxation disposition imposed on a person who does not have any factual basis, such as the legal relation, income, or act, which is subject to taxation, shall be deemed to be significant and apparent. However, in a case where there are objective circumstances that could mislead him to believe that it is subject to taxation with respect to certain legal relations or factual relations which are not subject to taxation, if it can be clarified only when the factual basis is accurately examined, it cannot be deemed to be apparent even if the defect is serious, and thus, it cannot be deemed that the illegal taxation disposition that misleads the fact that is subject to taxation is unreasonable as a matter of course (see Supreme Court Decision 2001Du7268, Sept. 4, 2002);

In addition, in an administrative litigation that claims the invalidity of an administrative disposition and seeks the invalidity confirmation thereof, the plaintiff is liable to assert and prove the grounds for invalidity thereof (Supreme Court Decision 2009Du3460 Decided May 13, 2010).

2) In light of the above legal principles, the following circumstances can be acknowledged by adding to the purport of the entire pleadings as to the instant case, namely, ① the Plaintiff acquired the ownership of the instant land on August 12, 2004 in the register of real estate register as to the instant land, and indicated that it was transferred to KRW 588,500,000 on February 5, 2008; ② the Plaintiff did not report the transfer income tax on the instant land; ② the Defendant imposed the transfer income tax on the basis of the real estate registry; ③ the existence of transfer margin or transfer of ownership due to the transfer of the instant land and the transfer of ownership due to the interim omission registration can be found only after an accurate investigation into the relevant facts. In light of all the circumstances, the evidence alone, which was submitted by the Plaintiff, is insufficient to acknowledge that there was a serious and clear defect in the instant disposition, and there is no other evidence to acknowledge it otherwise.

Even if the transfer of the instant land, as alleged by the Plaintiff, is assumed that there was no transfer margin or ownership was transferred in the form of an intermediate omission registration, in light of the overall circumstances as seen earlier, the instant disposition cannot be said to be apparent from the standpoint of its defect.

Therefore, the disposition of this case cannot be deemed to be null and void as a matter of course, so the plaintiff's assertion is neither a flag nor a ground.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed, and it is so decided as per Disposition.