Where a return of value is made by division of property, capital gains tax liability;

After the court orders the return of the value between husband and wife by means of division of property, the husband may request the auction of the husband's property and sell it to a third party. If the husband receives the dividend, the husband is liable to transfer income tax on the total amount

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 238,106,110 against the Plaintiff on December 4, 2009 shall be revoked.

1. Details of the disposition;

A. As between August 1989 and November 19, the Plaintiff acquired the ownership of BBri 406-2 forest 317 square meters, 78 forest 78 square meters in each Ri, 78-2 forest 2,603 square meters in each Ri, 423-3 preceding 1,716 square meters in each Ri, 423-4 3,841 square meters in each Ri, 423-6 1,878 square meters in each Ri (hereinafter “the instant land”).

B. On August 28, 2003, thisA, the wife of the Plaintiff, filed a divorce and consolation money, and a lawsuit claiming a division of property against the Plaintiff (the Plaintiff filed a counterclaim against divorce and consolation money at the appellate court). On April 18, 2006, the Suwon District Court, which is the appellate court, rendered a divorce against the Plaintiff and thisA, and the Plaintiff and thisA, dismissed their respective claims for consolation money, but the Plaintiff paid thisA a property division of KRW 330,00,00,00 and its delay damages (the judgment of the Supreme Court 2004Reuu1924, 204uuu2095 (Counterclaim)) was finalized in accordance with the judgment of the Supreme Court 206.

C. On November 7, 2006, thisA applied for a compulsory auction on the land of this case based on the above final judgment, and on May 8, 2007, thisA sold 356,889,800 won for the land of this case from the compulsory auction procedure (Sasan District Court Branch of Daejeon District Court Decision 2006Ma12140) to May 8, 2007, and the number of Kim Name completed the registration of ownership transfer. ThisA received a dividend of KRW 284,679,454, which is about 83% of claims under the above final judgment in accordance with the distribution schedule prepared on June 13, 207 (the Plaintiff’s creditor and secured-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-mortgage-backed agricultural cooperative received a dividend of KRW 67.563.120 won in the first order).

D. On January 7, 2010, the Defendant rendered a disposition imposing capital gains tax of KRW 238,106,110 (hereinafter “instant disposition”) calculated as follows on the sale of the instant land during a compulsory auction procedure (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap 1 to 4 evidence, Eul 1 evidence (including each number), the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

① Although the title on the registry was owned by the Plaintiff solely under the name of the Plaintiff, the instant disposition was unlawful in light of the following circumstances: (a) in the event that the Plaintiff had owned 40% shares in this case; (b) in the event that the real estate held in title trust was transferred, the title trustee is not obligated to pay capital gains tax; (c) the Plaintiff was exempted from the obligation of KRW 67,563,120 due to the sale of the instant land; and (d) the Plaintiff received KRW 284,928,454 of the remainder of the dividends; (c) the transfer of assets by a means of division of property at divorce does not constitute a transfer income tax, which is a taxable object of capital gains tax; and (d) the taxation of capital gains tax varies depending on the remote circumstances that the court ordered a division of value, not a spot division, based on the spot division.

B. Determination

5) From the perspective of the principle of property division, the Plaintiff’s assertion that: (a) among the instant land was sold by the Plaintiff’s 2,9, and 10 shares (including each number thereof), it is insufficient to recognize that thisA was the actual owner of share 60%; (b) there is no other evidence to acknowledge otherwise; (c) after the property division judgment became final, the instant land should be deemed as the sole owner of the Plaintiff’s land; and (b) it is merely the fact that thisA received dividends of KRW 284,928,454 from the sale price of the instant land as the owner of the said land, rather than the Plaintiff’s pecuniary claim against the Plaintiff; (c) it is difficult to view that some of the transfer gains on the said land belongs to thisA as the sale price of real estate owned by the husband or wife by the method of property division; and (d) it is unlawful to deem that the transfer price of real estate was the value of the real estate sold by the husband or wife by the method of property division in the form of property division (see, 200).

3. Conclusion

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