Even if there is an illegal defect in the disposition against the nominal owner who is not the substantial taxpayer, it cannot be deemed that it is evident that the disposition is not void.

Even if the actual owner of real estate is recognized as a third party, the real estate has been registered in the name of the third party for at least ten years, and the transfer income tax has been received in the name of the nominal owner, and there was an objective and external fact-finding relation, which would mislead the nominal owner as a taxpayer of the real estate, so illegal defects are not apparent

2012Guhap16268 Invalidity of a disposition of tax collection of capital gains tax

LAA

2 others than the Head of Central Tax Office

October 19, 2012

November 16, 2012

1. All of the plaintiff's claims are dismissed.

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

1. A. The Plaintiff filed a return on capital gains tax on November 10, 201 with respect to the Plaintiff on November 10, 201

1) Notice and disposition of the Head of the Central Tax Office of the Defendant Central Tax Office of November 10, 201 (00 won of transfer income tax), and demand and disposition of December 12, 201 (00 won of transfer income tax) and March 12, 2012 (00 won of transfer income tax).

2) Of the head of the Si/Gu in Seoul Special Metropolitan City, the disposal of the demand on January 18, 2012 (300 won local income tax for capital gains) and the disposal of the Defendant Special Metropolitan City.

3) Disposition of demand on April 24, 2012 by Defendant Seoul Special Metropolitan City Mayor (No. 000 won of local income tax on capital gains tax) and

(b) Each attachment disposition taken by the Head of Central Tax Office of the defendant on December 26, 201 with respect to each of the real estate listed in Schedule 1 through 3 annexed hereto, and with respect to the claims listed in Schedule 4 through 6 annexed hereto 1.

B.1) Each attachment disposition in respect of the claims described in [Attachment 1] Nos. 4 through 6 on December 26, 201, issued by the Head of Central Tax Office of the Defendant Central Tax Office on each real estate listed in [Attachment 1] Nos. 1 to 3;

2) On March 21, 2012, the Seoul Special Metropolitan City Mayor confirms that each attachment disposition taken against each real estate listed in Schedule 1 and Annex 2, and on May 1, 2012, with respect to the claims listed in Annex 1 List 4.

1. Details of the disposition;

A. DudDD, who was the husband of the Plaintiff’s Dong-gu (the former husband of the Plaintiff’s Jeoncheon GG), requested the Plaintiff to receive a successful bid of the instant real estate in the Plaintiff’s name on June 24, 1998 with respect to the Plaintiff’s 00 OOdong, Jongno-gu Seoul, 000 large scale 79.3m2, and on its ground 19.75m2 (hereinafter “instant real estate”).

B. The plaintiff completed the registration of ownership transfer on the real estate of this case as a result of auction on July 19, 199 after being awarded a successful bid with funds raised by DoD, etc.

C. Since then, the Plaintiff received KRW 000,000,000 around September 2009, respectively, from the DoD on the pretext of the honorarium for registering the instant real estate in its own name.

D. On June 201, 201, the instant real estate was managed by the EE of the headG, the birth of the DaDD, and the E entered into a contract with the DoF on behalf of the Plaintiff to sell the instant real estate at KRW 000 on behalf of the Plaintiff. ParkF, who completed the instant real estate, was a small individual, Hah-H, who was a small individual, and completed the registration of ownership transfer based on the sale of the instant real estate on July 25, 201, and the Plaintiff provided all documents, such as a certificate of personal seal impression, necessary for the registration of ownership transfer, to DoD (hereinafter referred to as DoD, headG, and DoE referred to as DoD, etc.).

E. On the other hand, on September 20, 201, with respect to the sale of the instant real estate, a return of capital gains tax under the Plaintiff’s name was received from the head of the Defendant Heavy Tax Office (hereinafter “the instant return of capital gains tax”), and the capital gains tax to be paid on such report was KRW 000, and the capital gains tax to be paid on capital gains tax was KRW 00

F. The Plaintiff did not pay taxes in accordance with the report of the transfer income tax in this case, and the Defendants notified and urged the Plaintiff to pay taxes, including additional taxes, as stated in the purport of the Office, and the Defendant’s Vice-head of the District Tax Office, and the Seoul Special Metropolitan City Mayor’s Head of the District Tax Office seized the Plaintiff’s real estate and claims (hereinafter “each of the instant dispositions”).

[Ground of Recognition] The non-strifed facts, Gap evidence (if any, including each number), two evidence, Eul evidence 5 to 12, Eul evidence 1, and Eul evidence 2, and the testimony and the whole purport of each of the testimony and arguments of O, and O

2. Whether each of the dispositions of this case is legitimate

A. The plaintiff's assertion

The Plaintiff merely transferred the title of the instant real estate to the Plaintiff according to the intention of DoDD, etc. after title trust upon the request of DoDD, etc., and there was no income from the transfer of the instant real estate. Therefore, even though the taxpayer of capital gains tax following the transfer of the instant real estate is the truster, the truster is the DoD, etc., the Plaintiff’s each disposition of the instant real estate made by the Defendants against the Plaintiff is null

(b) Related statutes;

Attached Form 2 shall be as stated in the relevant statutes.

C. Determination

1) A taxpayer of capital gains tax, etc. following the transfer of the instant real estate

A) In principle, where a person who intends to purchase real estate in the real estate auction procedure obtains a decision to permit the sale of the real estate under his/her own name with another person to pay the purchase price, and later requests the return of the real estate later, and then the person who takes the position of purchaser in the auction procedure obtains the ownership of the real estate for the purpose of auction at home and abroad (see, e.g., Supreme Court Decisions 2005Da664, Apr. 29, 2005; 2006Da35117, Nov. 9, 206) and transfer the real estate to another person, barring any special circumstance, it is deemed that the person who actually takes over the real estate to a third person upon receiving the purchase price under his/her own name after receiving the decision to permit the sale under another person’s name and subsequently agreed to receive the return of the real estate, and the title holder bears the ownership transfer income tax directly to the third person who bears the purchase price (see, e.g., Supreme Court Decision 2015Da1650.

B) According to the above facts, since the plaintiff was awarded a successful bid in the auction procedure of the real estate in this case, the plaintiff acquired the ownership of the real estate in this case, while the person who requested the successful bid in the plaintiff's name was transferred the real estate in this case according to the intention of Dodddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

2) The validity of each of the dispositions of this case

A) In order to ensure that a taxation disposition is null and void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient to say that the defect is in violation of important laws and regulations, objectively apparent, and in determining whether the defect is significant and obvious, it is necessary to examine the purpose, meaning, function, etc. of the laws and regulations that serve as the basis for the taxation disposition in question in a teleological context and to reasonably consider the specificity of the specific case itself (see, e.g., Supreme Court Decisions 90Nu10862, Nov. 27, 1990; 97Nu16329, May 28, 1999). This legal doctrine applies to a taxation disposition made on a person without any factual basis who is subject to taxation, i.e., a grave and apparent defect, or any legal relationship or fact that is not subject to taxation, and if it can only be found that the additional facts of the taxpayer are subject to taxation, it cannot be seen that the taxation disposition is unlawful as 97Nu16969, supra.

B) According to the above facts, the real estate in this case was registered for about 12 years in the Plaintiff’s name, and at the time of transfer, the transfer income tax return under the Plaintiff’s name was received to the head of the Defendant Central Tax Office, and at least objective and external facts were found to exist that the Defendants could mislead the Plaintiff as a taxpayer of the real estate in this case. Therefore, even if the transfer income earner of the real estate in this case was Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

3. Conclusion

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