Daejeon District Court-2015-Gu Organization-10039 (2017.09.06)

The transfer of the land of this case is legitimate because it cannot prove the title trust.

It is insufficient to prove that the transfer of the instant land is a title trust and there is no other evidence to prove otherwise.

Daejeon High Court 2015Nu13725 Revocation of Disposition of Imposing capital gains tax.

00

00. Head of tax office

Daejeon District Court Decision 2015Gudan10039 Decided November 13, 2015

2017.09.06

November 08, 2017

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. The defendant revoked the disposition of imposition of KRW 114,674,149 against the plaintiff on March 3, 2014 (including additional tax) of capital gains tax (including additional tax) for the year 2003 that the defendant made against the plaintiff on June 6, 201 (in accordance with the defendant’s correction of imposition reduction and correction by this court, the plaintiff reduced the purport of the claim as above. The part of the judgment of the first instance that reduced the purport of the claim was invalidated by itself, and the scope of the judgment of this court

1. Details of the disposition;

A. On the same day, the registration of ownership transfer was completed in the NewSJ on May 20, 2003 with respect to 00 Dogsan00, 000 (former lot number) forest land (13,616 m2) in Chungcheongnam-gun, Chungcheongnam-gun, 00, and on the same day, the registration of ownership transfer was completed in the Plaintiff’s name on the same day. On August 18, 200, the registration of co-owner’s Dog and HapK’s transfer was completed in the Plaintiff’s name on the 23th of the same month.

B. On August 26, 2003, the Plaintiff filed a preliminary return of KRW 000,000,000 for the transfer value of the forest of this case to the Defendant with the acquisition value as KRW 0 million and KRW 000,000 for the transfer income for the year 2003.

C. On March 6, 2014, the Defendant issued a disposition to increase the transfer value of the instant forest by KRW 00 million, acquisition value by KRW 00 million, and tax base by KRW 000,000,000, and issued a disposition to increase the transfer income tax (including additional tax) for year 2003, but on January 26, 2017, issued a correction disposition to reduce the said tax amount by KRW 000,000,000, with the acquisition value of the instant forest.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 3, Eul evidence 3, 4, and 8

, including branch numbers; hereinafter the same shall apply) and the purport of the whole pleading.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The Plaintiff is merely a title trustee who lent the ownership of the instant forest upon the request of the New KJ, and the income from the transfer of the instant forest was entirely attributed to the New KJ, the title truster. Therefore, the instant disposition based on the premise that the Plaintiff is a real owner is unlawful in violation of the principle of substantial taxation.

Even if no title trust relationship is acknowledged, the value of the forest of this case acquired by the Plaintiff was KRW 0 million or KRW 0 million, but the Defendant, while rendering the instant disposition, deemed the acquisition value of the forest of this case as KRW 0 million and calculated gains on the transfer of the forest of this case, the instant disposition is unlawful.

B. Determination

1) A) If a title truster transfers real estate to a third party and the transfer income was attributed to a title truster, under the substance over form principle under our tax law, the person liable to pay the relevant transfer income tax does not mean that the title truster, who is the subject of the transfer, becomes a taxpayer (see, e.g., Supreme Court Decision 93Nu517, Sept. 24, 1993). Furthermore, the title truster, who is the subject of the transfer, bears the burden of proving that there is only the nominal ownership of income and there is a person who actually obtains income (see, e.g., Supreme Court Decision 84Nu505, Dec. 11, 1984).

B) (1) According to the testimony of the evidence Nos. 5, 6, and 17 of the first instance court witness, the first instance court witness SJ, the last YR of the first instance court witness, and the New SSJ, the new seller of the first sale, part of the sales proceeds to the new seller of the first sale.

(Total Transfer of KRW 49 million). After the disposition of this case, the Plaintiff and the Jung HS were found to be the house of the NewSJ residing in Seoul, or accompanied to the office of a certified judicial scrivener HamO and a certified tax accountant HamH. It was known that the office of 00 licensed real estate agent who arranged the first sale and purchase of this case was operated around 2003, and in light of these facts, it may be viewed that the New KJ participated to some extent in the process of first sale and purchase of the forest of this case and payment of the forest of this case.

(2) However, if the facts and evidence in Paragraph (1) are based on the facts and evidence, evidence Nos. 13, 14, Eul evidence Nos. 13, 5, 6, 7, and 13, witness testimony of the first instance court, witness testimony of the first instance court of the first instance (as a result of the plaintiff's assertion, the Jung HS is a person who served as a broker assistant of the office of 00 licensed real estate agents operated by New KJ) and the order to submit financial transaction information to the 1st court of the first instance and No. 00, the first instance court of the first instance issued an order to submit financial transaction information to the NAF, and the following circumstances are found comprehensively based on the whole purport of the arguments as a result of the written appraisal of this court, it is difficult to believe that the testimony of the party witness testimony HS is consistent with the plaintiff's assertion, and the evidence presented by the plaintiff alone is insufficient to recognize that it trusted trust to the plaintiff as the actual owner of the forest in this case, and there is no other evidence to find otherwise.

(A) Unless there exist special circumstances, the existence and content of the expression of intent should be recognized in accordance with the language and text (see, e.g., Supreme Court Decision 2012Da44471, Nov. 29, 2012). However, the sales contract of May 20, 2003; and the Plaintiff’s sales contract of July 10, 2003, stating that the Plaintiff would sell the forest land of this case to Nonparty JH and one other in the instant case in the name of the Plaintiff.

(B) According to the statement of the 00 Bank Financial Transactions Council (No. 13), it is confirmed that the No. 10,000 won of a cashier’s check was deposited in the No. 5 of August 5, 2003 with the No. 13, however, it is difficult to conclude that the No. 200 million won of an intermediate payment on the sales contract of July 10, 2003 (the date of payment on July 29, 2003) and the receipt of an intermediate payment (the amount of KRW 0 million) are a check issued by the JH as the purchase price of the instant No. 2.

(C) According to the statements in Gap evidence Nos. 21, 22, 23, and Eul evidence Nos. 7, in the process of deposit of KRW 00 million into the Yellow HS, the court below acknowledged the use of three cashier's checks (total KRW 0 million) paid by leH and kJH as the purchase price of the forest of this case, and stated that the check was received as a case from YJ in return for the help of YJ himself/herself to do the work of YJ. However, if the HS merely assist the sale of real estate, it is difficult to obtain the above amount of money from Y from Y in light of the empirical rule, it is difficult to believe that the above testimony of Y's above testimony is difficult, and unless there is any evidence supporting the plaintiff's assertion in relation to the process of using the above checks, it is difficult to readily conclude that the plaintiff received the forest of this case from Y from Y, merely on the ground that the HS used the above checks.

(D) The Plaintiff asserts that the Plaintiff did not participate in the instant trade No. 1 and No. 2. However, at the first instance court court, leHK, the purchaser of the instant second sale, gave testimony to the effect that “PK did not have any main entry on the part of the Plaintiff, and entered into a direct contract with the Plaintiff at the office of 00 licensed real estate agents through the brokerage of the HS. All three times at the time of the payment of the down payment, intermediate payment, and remainder of the instant forest land, all of the Plaintiff were given to the Plaintiff and the Plaintiff are inconsistent with

(E) The Plaintiff asserts that the sales contract of July 10, 2003, and the receipts (No. 6) of July 10, 2003, issued to the buyer of the second sale of this case, and August 18, 2003, issued to the buyer of the second sale of this case, are all prepared by the New KJ, and that the Plaintiff also stated that the portion of the phrase “No. 14, the certified tax accountant may peruse the records of the sales contract of No. 14, Hah and HK as a sales contract of No. 14,” written by the LJ, “No. 14, the certified tax accountant may peruse the records.”

However, according to the result of the written appraisal by this court, it was appraised to the effect that "the part entered in the item column of the special agreement of the sales contract dated July 10, 2003 and the part entered in the receipt of this case are different from the penology of the New KJ, and it is difficult to judge whether the part entered in the upper part of the text of the guidance to submit explanatory materials of transfer income tax is written and moved at the time of the new KJ."

(f) In the first instance court, the new SSJ testified to the effect that “the title of the purchaser of the first sale of this case was dealt with by the New KSJ.” However, it is unclear whether the new SSJ’s testimony alone is the actual purchaser of the first sale of this case, even though it testified to the effect that “the purchaser of the first sale of this case was not memory, and the new KSJ was aware of it as a real estate business entity.”

(g) On January 14, 2014, the Jung-gu HS sent a text message stating that “I will have 0,000 if you were to deduct” with respect to the instant disposition. “C” in the text message appears to mean the Plaintiff, Seo-gu KJ, and Jung-gu HS. However, there is no reason to suggest that I will bear 1/3 of the transfer income tax on a voluntary basis if the Plaintiff was merely a title trustee and did not have acquired the transfer proceeds of the second sale, (and even according to the testimony of the first instance court and the Si-Si-Stopon HS, the Plaintiff did not receive any particular case even after receiving the instant forest). In addition, if the Plaintiff’s assertion, HS merely transferred the title trust to the Plaintiff as a member of the licensed real estate agent’s office, and it is difficult to obtain 1/3 of the Plaintiff’s full payment of the transfer proceeds to the Plaintiff.

(h) On January 2014, the Plaintiff: (a) sought a new SSJ’s office upon request from the New KSJ; (b) but did not meet the new SSJ; (c) at that time, the Plaintiff did not hold the title trustor liable for the instant disposition or discussed solutions to the instant disposition.

(i) The Plaintiff asserted that the certificate of completion of the registration of the forest of this case was kept and managed by the New KJ, but there is no evidence to acknowledge it.

2) The above evidence and the circumstances acknowledged based on Gap evidence evidence evidence evidence Nos. 5 and 6, i.e., new ESJ testified to the effect that "the court of first instance was remitted KRW 0 million to its bank account in the purchase price of the forest of this case," and thereafter, the new ESJ and the plaintiff exchanged with the same purport (Evidence No. 5) and it can be acknowledged that the transfer was made to the 00 bank account in the name of new SSJ as of April 13, 2003, KRW 19,000,000 won on May 19, 200 and KRW 60,000 on May 19, 200, etc., it is reasonable to view that the acquisition price of the forest of this case was KRW 0 million,000,000,0000,000,0000,000 won on the basis of the testimony of the new ESJ in the first instance trial.

3) Therefore, the instant disposition is justifiable, and the Plaintiff’s assertion that caused the instant disposition is difficult to accept.

3. Conclusion

If so, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is legitimate with this conclusion, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.