National Tax Service Review and Transfer 2010-0298 ( November 30, 2010)

The disposition imposing capital gains tax on the Plaintiff by deeming the actual owner of apartment capital gains to be the Plaintiff is legitimate.

Considering that the actual decision-making on the use, profit-making, and disposal of an apartment seems to have been made by the Plaintiff in light of a series of real estate transactions and maintenance circumstances surrounding apartment, it is reasonable to view that the actual owner of the apartment as the actual owner of the apartment is the Plaintiff, and thus, the disposition imposing capital gains tax on the Plaintiff is lawful.

2010Gudan22422 Revocation of Disposition of Imposing capital gains tax, etc.

Park Gyeong-gu

O Head of tax office

April 26, 2011

May 31, 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 64,931,880 against the Plaintiff on August 12, 2010 is revoked.

1. Details of the disposition;

A. On April 3, 2006, the Plaintiff’s wife KimB acquired and possessed at KRW 769,000,000,000,000 for 1076 EEE Loan Housing KRW 13,000,000,000,000 for the instant apartment on May 15, 2009. However, on August 12, 2010, the Defendant deemed that the actual owner of the instant apartment was the Plaintiff (it is deemed that the Plaintiff entrusted the ownership of the instant apartment to KimB) and decided and notified the Plaintiff of KRW 64,931,880,00 for the transfer income tax of KRW 209 for the Plaintiff (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 3, purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The plaintiff asserts that the disposition of this case, which was reported differently, is unlawful even though it is not the actual owner of the transfer income of the apartment of this case as seen below.

(1) In order to help KimB to increase its property, the Plaintiff: ① if KimF, the father of KimB, died, KimB, he was to inherit the house in the name of KimFF that KimB, the father of KimB, was to succeed to the sole inheritance, instead of the Plaintiff’s sole inheritance, the Plaintiff gave to KimB, in return, KRW 200 million prior to inheritance; ② additionally lent to KimB, KRW 170 million; and KimB actually acquired the instant apartment on April 3, 2006 using the above funds. The Plaintiff was immediately transferred the house in question from KimB, but this is natural in view of the fact that the acquisition fund of the instant apartment was appropriated for a portion corresponding to the Plaintiff’s loan, and thus, there was a need to reduce the interest cost.

(2) Also, considering the Plaintiff’s loan of KRW 170 million against KimB, interest of KRW 87 million on debt acquisition related to the apartment of this case that the Plaintiff paid on behalf of the Plaintiff, KRW 120 million on the Plaintiff’s personal debt of KimB, KRW 120 million on the instant apartment that the Plaintiff paid on behalf of KimB, and KRW 33 million on additional revised transfer income tax on the instant apartment that the Plaintiff paid on behalf of KimB, the Plaintiff did not have any profit from the acquisition and disposition of the apartment of this case, and thus, the disposal proceeds of the instant apartment of this case reverted to the Plaintiff cannot be a ground for recognizing title trust between the Plaintiff and KimB.

(3) Therefore, the Plaintiff is not the actual owner of the instant apartment.

(b) Fact of recognition;

(1) There are four daughters between Kim F and Jeong H, Kim K, KimL, KimB, and KimG, and the Plaintiff is the spouse of KimG. KimF acquired the ownership of the NM-dong N4-94, and multi-household 202 (hereinafter referred to as the “NN-dong multi-household housing”) on December 13, 1994. The NF acquired the ownership of the NM-dong multi-household 202 (hereinafter referred to as the “NN-dong multi-household housing”). On December 13, 1999, the NN-dong multi-household housing completed the registration of creation of a mortgage, which is the debtor, KimF, and the National Agricultural Cooperative Federation.

(2) 김BB은 2006.경 부모님을 모시고 NN동 다세대주택에 살고 있었는데 그 무렵 별다른 수입이 없었고 사업 실패로 인한 개인 채무가 약 7,600만 원에 달하였다. 이 사건 아파트의 취득 자금은 김BB이 전 소유자인 신QQ의 주식회사 RR은행에 대한 대출금반환채무와 이 사건 아파트의 임차인에 대한 임차보증금반환채무를 인수하고, 약 3억 7,600만 원을 매매잔금, 등록세, 부동산중개수수료 등에 현금으로 지급하는 방법으로 충당되었는데, 위 3억 7,600만 원 상당의 현금은 모두 원고가 마련한 것이다.

(3) The KimF died on March 18, 2007, and the NF transferred the ownership to KimG due to inheritance due to the consultation division. At that time, KimG owned YYYYYYYY 1301, the housing acquired on November 17, 2006, Seoul SSS-dong 1338, which was the housing acquired on November 17, 2006. KimGG completed the registration of ownership transfer for NNdong multi-household housing on March 7, 2008, and sold the above multi-household housing at KRW 280 million to Yellow W on April 19, 2008, and completed the registration of ownership transfer to Yellow on June 17, 2006. Meanwhile, the registration of ownership transfer was cancelled on June 12, 2008.

(4) On May 10, 2008, KimG purchased a newly-built house (327.9 square meters in total of the area of the underground first floor and the third floor; hereinafter referred to as “ZZdong house”) located in the Z1,50,000,000 won from the Signatory, and completed the registration of ownership transfer on June 19, 200, and had KimB and its mother reside in Y.

(5) Meanwhile, on April 16, 2009, KimB sold the apartment of this case to Hua and Mabbb in KRW 99 million, and completed the registration of ownership transfer on May 15, 2009, and immediately transferred to the Plaintiff the purchase price of KRW 438 million, which was actually received except for the debt acquisition amount. In addition, all of the affairs related to the acquisition and disposal of the apartment of this case were handled by the Plaintiff.

[Reasons for Recognition] Facts without dispute, Gap's 4 through 17, 23, 24 evidence, Eul's 1 to 3, the purport of the whole pleadings

C. Determination

Article 14(1) of the Framework Act on National Taxes provides that "if the ownership of the income, profit, property, act, or transaction subject to taxation is merely nominal, and there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable to pay taxes." Meanwhile, in the case of title trust with a third party, if the title truster transfers the real estate and the income from the transfer of the real estate belongs to the title truster, the person liable to pay the relevant transfer income tax shall be the title truster, who is the subject of the transfer (see, e.g., Supreme Court Decision 96Nu6387, Oct. 10, 197)." In this case, the above facts of recognition are as follows: ① the financial resources of the Plaintiff and KimB, the price of the apartment, the developments leading to the conclusion of the sales contract, and the interest payment for the apartment house, etc., which appears to be all the circumstances that the Plaintiff would have accrued to the Plaintiff in light of the process of the purchase and sale of the apartment house, and ② the circumstances surrounding the purchase and disposal of the apartment house.

D. Sub-committee

Therefore, since the actual owner of the transfer income of the apartment of this case is the plaintiff, the disposition of this case reported as such is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.