Seoul Administrative Court 2008Guhap49131 (209.04)

Judgment on the estimated change of approval certificate contract

It is difficult to deem that the approval seal contract has been prepared differently from the actual ones solely on the grounds that the payment date of the intermediate payment of the approval seal contract is the same, that the application for approval is filed only by one of the parties, and that there is a substantial difference from the

The contents of the decision shall be the same as attached.

1. The plaintiff's appeal is dismissed.

2. Costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of capital gains tax of KRW 1,264,86,600 against the plaintiff on October 2, 2007 shall be revoked.

1. Quotation of judgments of the first instance;

The reasoning for this Court’s explanation concerning this case is as follows, except for the addition of the following decisions to the corresponding part of the court, and therefore, it is consistent with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. Matters to be judged additionally;

A. The plaintiff's assertion

(i) argument that the title trustee is merely a title trustee;

When the Plaintiff was unable to pay only the provisional contract amount for the instant real estate and raise funds for the purchase of the instant real estate, newA purchased the instant real estate at its own expense, and entrusted its ownership by completing a transfer registration in the future of the Plaintiff, and thereafter, by concluding an exchange contract with the third real estate, the transfer income was reverted to the title truster, who is the title truster. Therefore, in light of the principle of substantial taxation under Article 14(1) of the Framework Act on National Taxes, newA, who is the subject of transfer of the instant real estate, should be a taxpayer of the transfer income tax, and thus, it is unlawful for the Plaintiff, who

(ii)the assertion that the presumption of acceptance contract has been reversed;

In light of the fact that the sale price under the seal of approval contract of this case is a large amount of 5.5 billion won, but the pre-determined date, the down payment, the intermediate payment, and the balance payment date, including the contract date, are equally indicated as the same on November 24, 2003, and that the application for seal of approval can only be made by one of the parties to the contract, and the public official in charge does not examine only the formal requirements of the contract, and does not actually examine transactional relation, and that the auction appraisal value of the real estate of this case is assessed as approximately 4. billion won, and there is a substantial difference between the sale price under the seal of approval contract and the transaction price under the seal of approval contract, the presumption that the contract of this case was prepared in accordance with the sales contract between the parties to the contract of this case is unlawful. Thus, the disposition of

B. Determination

1) Determination on whether a title trust was made to the Plaintiff

The testimony by the witness Lee Jae-B, who seems to be consistent with the plaintiff's argument that the newA trusted the title of ownership to the plaintiff as the actual purchaser of the real estate of this case, does not believe that the testimony by the witness Lee Jae-B was made (this is difficult to believe that the plaintiff was present as a witness of the first instance court and testified that the purchaser of the real estate of this case borrowed part of the purchase price from the newA, but that the newA was made a title trust to the plaintiff as the actual owner of the real estate of this case. There is no special reason to reverse the testimony, and therefore, it is difficult to believe that there is no other evidence to acknowledge the above assertion solely on the basis of the statements in Gap 13 through 16, Gap 22,23, and evidence No. 24. Accordingly, the plaintiff's above title trust assertion is without merit

2) Judgment on the reversal of presumption of a written judgment

Unless there are special circumstances, the claimant must prove that the approval seal contract prepared by the parties to the transaction and affixed an approval seal by the head of the Si/Gun, etc. is prepared in accordance with the sales contract between the parties, and that the contract was prepared differently from the actual ones (see Supreme Court Decision 93Nu2353, Apr. 9, 193). The reason alleged by the plaintiff alone is insufficient to recognize that the approval seal contract of this case was prepared differently from the actual ones, and there is no other evidence to acknowledge this differently. Therefore, the plaintiff's assertion is without merit.

3.In conclusion

Therefore, the judgment of the court of first instance is legitimate, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.