National Tax Service Review and Transfer 2010-018 (2010.07)

The disposition imposed on a person who is deemed three houses for one household is legitimate.

Since it is insufficient to recognize that the spouse is a simple title trustee of the house only with the evidence submitted by the Plaintiff, the disposition that the Defendant imposed on the spouse as the three housing units for one household is legitimate.

2010Gudan24688 Revocation of Disposition of Imposing capital gains tax

private XX

O Head of tax office

July 15, 2011

August 26, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 113,710,200 against the Plaintiff on January 4, 2010 shall be revoked.

1. Details of the disposition;

A. On April 22, 2005, the Plaintiff acquired from the Seoul XX-dong 000-000 (hereinafter “ XX-dong house”) and transferred on June 10, 2008 to the other party, and did not report the transfer income tax within the due date for legal spirit.

B. At the time of the transfer by the Plaintiff, the Defendant owned the Plaintiff’s spouse KimB’s detached housing located in AAAdong-dong Seoul Metropolitan Government (hereinafter “O-dong apartment”) at the time of the transfer of XXdong housing units (hereinafter “O-dong apartment”) at KRW 000,000 (hereinafter “O-dong housing”), and rendered the instant disposition that applied the heavy taxation rate of KRW 113,710,200 to the Plaintiff on January 4, 2010, on the ground that the Plaintiff’s spouse and KimB owned a detached housing located in AAdong-dong Seoul Metropolitan Government (hereinafter “O-dong housing”) at KRW 100-00 (O-dong housing, acquisition on April 10, 2008, and transfer on July 10, 2008).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, 5, 7, 8 (including above numbers), the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The reason why KimCC, YangD and their real estate brokerage offices jointly operating the real estate brokerage business was that the Plaintiff’s Siber branch KimE purchased AAdong house and constructed, sold, and sold neighborhood living facilities on the site. The ratio of sharing the cost and profit distribution agreed that KimCC 4/6, YangD and KimE shall be KimB, and the buyer’s name shall be KimB. The reason why KimB decided the buyer’s name to be KimB to be the buyer’s name to be the △△△, “△△△△△△” in BB Dong at the time of BBB, and thus, it would be favorable for the Defendant to register a new real estate sales business and receive loans for the purchase of the AAdong house and the new construction of the neighborhood living facilities.The KimB acquired the house temporarily from the date of his father’s request, but it was unlawful for the Plaintiff to temporarily transfer the house from 200 to 3100,000 houses to another 20,000 houses.

B. Determination

The Plaintiff’s assertion is premised on the premise that KimB is a trustee who was entrusted only with the ownership of the AAdong house from KimCC and YangD KimE, the actual owner of which. Therefore, considering the following circumstances: (a) there is no dispute between the parties as to such issue; (b) there is no evidence between the parties; (c) evidence Nos. 5 through 8, 10 through 12, 15, 16; and (d) evidence Nos. 1 (including the above numbers); and (c) the witness KimCC’s testimony that can be known by adding the whole purport of the pleadings to the testimony of KimCC, the KimB appears to be the member of the association that acquired the AAdong house; and (d) there is insufficient evidence to acknowledge KimB as a mere title trustee of the AAdong house; and (e) there is no other evidence to support this, the Plaintiff’s assertion is legitimate

OAdong housing is purchased and the business contract (Evidence No. 6) prepared on April 10, 2008 in order to carry out the business of selling and selling neighborhood living facilities on the site is described as 2/6, 1/6, 2/6, 1/6, 1/6, 1/6, 1/6, and 6, respectively, and there is no reference in relation to KimB's father Kim E-E.

O Witness KimCC testified to the effect that the actual party to the said agreement is KimCC, YangD, Gangwon F, and KimB as stated in the said agreement.

O In the acquisition of OO apartment acquired by the Plaintiff 20 days prior to the date of acquisition of AAB house, the Plaintiff entered into a partnership agreement with himself, KimCC, and YangD to jointly purchase, possess, and dispose of it for the purpose of residence and investment. The parties to the partnership agreement (Evidence A 15) reflect the substance thereof as it is, and each share is described as the Plaintiff, KimCC, and YangD, and each share is described as 1/3.

OB entered into a sales contract on March 12, 2008. The sales price was KRW 750 million, the intermediate payment was KRW 300 million on the date of the contract, the intermediate payment was 300 million on April 10, 2008, and the intermediate payment was paid KRW 375 million on April 30, 2008. The part of the intermediate payment was paid KRW 300 million on the account of the HB bank account (0-000-0000-000000-000000 and April 10, 2008) with KRW 200,000,000,000 in each of the above 40,000,000, 200, 200,000, 200,000, 300,000, 300,000, 20,000, 200.

In the process of the acquisition and transfer of the OAB house, KimB was present at the place of payment of the balance to the seller at the time of acquisition, and he directly prepared the same business contract with KimCC, YangD and KangF, and directly signed the sales contract at the time of transfer, and directly received and distributed the balance of KRW 30 million with KimCC and YangD.

(3) The account transfer account in the name of 0,00,000 won and 0.0,000 won and 08,000 won and 0.0,000 won and 0,000 won and 0,000 won and 0.0,000 won and 0,000 won and 0,000 won and 1,08,00,000 won and 00,00 won and 1,08,00,000 won and 0,000 won and 0,00,000 won and 0,00,000 won and 0,00,00 won and 0,00,00 won and 1,00,00,00 won and 0,00,00 won and 0,00,00 won and 0,00,00 won and 1,00,00,00,00 won and more.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.