National Tax Service Review and Transfer 2011-0031 (Law No. 29, 2011)

Any disposition that imposes capital gains tax on a title trustee merely is illegal.

In light of the fact that the third party led to the raising of funds for acquiring land or the sales contract, the part of the purchase price was paid as the passbook, but it appears that it was withdrawn and paid to the third party, and the report and payment of capital gains tax was made by the third party, it is not excessive to

Article 14 of the Framework Act on National Taxes

2011Gu 19713 Revocation of Disposition of Imposition and Correction of Capital Gains Tax

Park AA

Head of the Do Tax Office

April 24, 2012

May 29, 2012

1. The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2000 against the Plaintiff on November 15, 2010 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On June 21, 200, the Plaintiff completed the registration of ownership transfer on the ground of sale on May 10, 200 with respect to BB, Dong B, 000 square meters (hereinafter “instant land”), and completed the registration of ownership transfer on August 16, 200 with respect to the instant land on the ground of sale on June 26, 200.

B. On August 16, 2000, the Plaintiff reported and paid the transfer income tax to the Defendant with the acquisition price of the instant land KRW 000 and the transfer price of KRW 000.

C. However, on November 15, 2010, the Defendant reported the transfer value of the instant land to the Plaintiff, and reported the correction of KRW 000 for the transfer income tax for the year 2000 (hereinafter “instant disposition”).

[Grounds for Recognition] The non-contentious facts, Gap evidence 1 and 2 (including each number), and evidence 1, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff is merely a title trustee of the instant land, and the actual owner of the instant land is teE. Therefore, the instant disposition imposing capital gains tax on the Plaintiff, which is merely a title trustee, is unlawful.

(b) Fact of recognition;

(1) With respect to the instant land, from the FF on June 21, 200, the transfer registration for ownership was completed in the name of the Plaintiff on May 10, 200 in the name of the Plaintiff, and on August 16, 2000, the transfer registration for ownership was completed from the Plaintiff on June 26, 200 in the name of Nonparty HaD under the name of Nonparty HadD.

(2) The terms of the sales contract of May 10, 200 with respect to the instant land (the sales contract between the Plaintiff and F, and hereinafter “the instant first sales contract”) are as follows.

(a) Seller, FF, and Buyer: Ga (Plaintiff)

(b) Sales amount: 000 won (contract amount of KRW 000, and any balance of KRW 000).

(c) observer: PoE (OOOO-dong 000)

"(3) The terms of the 26th June 200 sales contract on the land of this case (the sales contract between the plaintiff and HaD, and hereinafter referred to as "the second sales contract of this case", and the 1st and second sales contract of this case referred to as "each sales contract of this case") are as follows: (a) the seller, the plaintiff, and the buyer. HaG.

(B) Sales amount of KRW 000 (contract amount of KRW 000, intermediate payment of KRW 000, and any remainder of KRW 000)

(c) observer: PoE (OOOO-dong 0000)

(d) Matters of the special agreement

(1) The sales contract is a condition under which the buyer actively cooperates at the time of the seller’s transfer.

(2) Part of the purchase price is an online remittance condition (New Bank 000 A).

(4) According to the instant contract for the second sale of this case, Dod additionally drafted a sales contract with Dote in which the first sale price was KRW 000,000, and 000 out of the sales price under the instant contract for the second sale of this case was remitted to the account in the name of the Plaintiff, and the remainder of the sales price was paid to Dote.

(5) The Plaintiff withdrawn the above KRW 000 deposited in the passbook in the name of the Plaintiff and paid it to the E, and the funds for acquiring the instant land were also raised by the E.

[Ground of Recognition] The above evidence, Gap evidence Nos. 3 through 9, the testimony of the witness PoE, and the whole purport of the pleading

B. Determination

In the case of title trust with a third party, if the title truster transferred the real estate and the income from the transfer was attributed to the title truster, and under the principle of substantial taxation under Article 14(1) of the Framework Act on National Taxes, the person liable to pay the transfer income tax does not belong to the title truster. The title truster, who is the subject of the transfer, is not the person liable to pay the transfer income tax. The following circumstances are as follows, i.e., that the title truster, who is the subject of the transfer, could be recognized by the above facts and evidence, and that the title truster, who was operating the authorized brokerage business by the government, would purchase the land in this case, and that the land in this case would be transferred to the third party in the name of the plaintiff, and that the land in this case was transferred to the third party. ② The title truster, who was the purchaser of the second sales contract, was the actual purchaser of the land in the name of the plaintiff, and that the plaintiff would have been deemed to have been unlawful after the transfer of the land in this case and the transfer income tax payment of the land in this case.

3. Conclusion

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