Seoul Administrative Court 2017Gudan74507 ( July 25, 2018)

Examination-transfer-2017-016 ( October 15, 2017)

In full view of the individual circumstances as to whether a title trustee is deemed a title trustee, the Plaintiff cannot be deemed to have proved that he was a title trustee of the instant real estate.

(1) In a case where the parents hand their properties to their own consciousness before their birth, the parents still exercise the right to manage and dispose of the properties in question with their own cooperation or consent after their birth. As such, the mere fact that the parents continued to exercise the right to manage and dispose of the properties even after they transferred the name of the properties to their own consciousness, it cannot be readily concluded that the title trust, not the donation, is a title trust.

Article 88 (Definition of Transfer)

2018Nu5987 Revocation of Disposition of Imposing capital gains tax

GongAA

BB Director of the Tax Office

July 25, 2018

March 4, 2019

March 27, 2019

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The defendant's disposition of imposition of KRW 2*,*** on January 11, 2017 against the plaintiff 2015 shall be revoked.

1. Quotation and revision of judgment of the first instance;

The reason why this Court is used in relation to this case is as follows. The plaintiff's assertion in the court of first instance is added to the corresponding part of the judgment as to the contents of the judgment in the court of first instance, and it is identical to the reasoning of the judgment in the court of first instance. Thus, it is acceptable in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

[Supplementary Use]

The Seoul Seocho-gu** Dong****************” of forest, Seocho-gu** Dong ********” of the judgment of the first instance court shall be read as the "Seoul Seocho-gu*******************(hereinafter referred to as the "real estate in this case").".

The part of the 8th 10th 10th e.g., the first e., the judgment cannot be viewed as “..... there is no evidence suggesting that the certificate of registration of the instant co-ownership shares was possessed by the E.”

2. Additional matters to be determined;

A. The plaintiff's assertion

Even if the auction price has been determined through the voluntary auction procedure, if the auction price was written in order to reduce the future tax burden, or if the sale price exceeds the ordinary market price, it shall be deemed unlawful in light of the substance over form principle. However, KimD, which was the representative director ofCC (hereinafter referred to as “CC”), was the Plaintiff’s representative director, should be considered as illegal in light of the substance over form principle. However, considering the business friendship with the Plaintiff’s publicE, the objective value of the instant co-ownership does not considerably fall short of the amount of the CC’s claim, but the bid price was determined to adjust all obligations to the CC ***,********* in terms of the amount of the claim to the CC * the sale price of the instant co-owned share as the price of the instant real estate * the sale price of the instant real estate * the price of the instant real estate * the price of the instant real estate * the price of the instant share in the process of selling the instant real estate * the price of the instant real estate 25 G2126.

Therefore, as the auction price of the instant co-ownership ** billion is not recognized or confirmed as the actual transaction price, the transfer price of the instant co-ownership shares, 235,***,*****.

(b) Fact of recognition;

1) The particulars of the registration

With respect to each one-half portion of the instant real estate, the ownership transfer registration was made in the name of GongH (Plaintiff’s assistance) and KoreaGG in March 30, 1981 with respect to each one-half portion of the instant real estate. On March 19, 2003, the ownership transfer registration was made on the ground of “the Plaintiff’s contribution on March 18, 2003.”

2) The process of the voluntary auction procedure against the instant co-ownership

A) KKKKK (hereinafter referred to as “KKK”) was established on January 1, 2002 for the purpose of manufacturing textile products and wholesale retail, etc. *. At the time of January 2012, 201, its representative director was EF (the Plaintiff’s mother), and the auditor was the Plaintiff. On January 18, 2012, CC, KKK, EF, and the Plaintiff agreed (hereinafter referred to as “instant agreement”).

B) According to the agreement of this case, on January 19, 2012, the establishment registration of a neighboring mortgage with respect to the co-ownership of this case was completed with the debtor FF, the mortgageeCC, the maximum debt amount 1,*********.

C) Notwithstanding the instant agreement, KRK did not continue to perform its obligation to CC, and CC applied for voluntary auction of the instant co-ownership shares. The Seoul Central District Court accepted the said application from CC and rendered a decision to voluntarily commence auction of the instant co-ownership as the above court 20***** on April 21, 2014 (hereinafter “voluntary auction procedure”).

D) During the instant voluntary auction procedure, an appraisal of the instant co-ownership was conducted, and the appraised value based on *. *. 795, **, **********.CC participated as the purchaser in the instant voluntary auction procedure and was awarded a successful bid for the instant co-ownership in KRW ** auction price***00 million. The instant co-ownership share was registered as to the instant co-ownership after the said process *. The ownership transfer registration was completed in the CCTV.

E) Meanwhile, the sales price of the instant voluntary auction procedure****** the balance (the amount to be actually distributed) after the cost of execution was KRW 9**,**,****** out of the above amount was distributed to the Seoul Special Metropolitan City***, which is the person entitled to deliver (the relevant tax) and the rest of 9*****,***** won was distributed to theCC as the applicant creditor.

3) The progress of the auction procedure

A)* The director of the tax office seizes the shares of HanG (hereinafter referred to as “ HanG shares”) out of the instant real estate on the grounds of delinquency in national taxes of HanG *. On the same day, the attachment registration was completed on the same day.****** the director of the tax office seized the shares of HanG on the grounds of delinquency in national taxes of HanG *. The attachment registration was completed on the same day.** the Korea Asset Management Corporation entrusted with the public sale procedure by the director of the tax office *.* the Korea Asset Management Corporation notified the public sale of the public sale of HanG shares (hereinafter referred to as “public sale procedure in this case”).

B) The appraisal of the GG shares in the instant public sale procedure was conducted, and the appraisal of the GG shares in the instant public sale procedure was conducted on January 2, 2015**** the appraised value based on the date of 9******,***.

C) Meanwhile, as a co-owner of the instant real estate,CC paid 2*,**,00 won for public sale deposit under Article 73-2(1) of the National Tax Collection Act, and filed a preferential purchase report for the portion of HanG with the same time. The Korea Asset Management Corporation on January 2016* the Korea Asset Management Corporation made a preferential decision on sale (sale price 2***,000) in accordance with Article 73-2(2) of the National Tax Collection Act, andCC paid * the remainder of the proceeds of sale 2**,****,**,000. The payment of the remainder of the proceeds of sale ****,***,*********. As to the portion of the GuG after this process * on June 2016.

[Ground of recognition] Facts without dispute, Gap 1, 2, 5, 11, 18, 19, 20 evidence, Eul 2, 5, and 6, the purport of the whole pleadings

C. Determination

1) In the voluntary auction for the enforcement of the collateral security, the successful bidder succeeds to and acquires the ownership of the secured real estate through realization of the contents of the collateral, so even though the registration of the collateral security was made as the physical guarantee for the third party's obligation, the transferor of the object of auction is the surety and the proceeds of the auction are also reverted to the owner of the object of auction as the transfer income of the surety (see Supreme Court Decision 91Nu360, May 28, 1991). Therefore, the auction proceeds of the object of auction shall be deemed as the transfer value of the property as the actual transaction value of the real estate, barring special circumstances.

2) Examining the following circumstances revealed in light of the aforementioned facts in light of the legal principles as seen earlier, deeming the transfer value of the instant co-ownership as an auction price*** billion won cannot be deemed as contrary to the principle of substantial taxation. The auction price of the instant co-ownership ** billion won cannot be deemed as having been recognized or confirmed as the actual transaction price. The Plaintiff’s assertion cannot be accepted.

Unless there are special circumstances such as the co-ownership relationship between the instant co-ownership of the instant real property and the shares in HanG owned by HanG, the value of the instant co-ownership and the shares in HanG owned by HanG should be deemed to be the same. Meanwhile, according to the appraisal conducted in the public sale process of the instant real property, the shares in the instant real property (KoreanGG shares) were assessed as KRW 9****,*****,**** as of the base date immediately before the said base date *** *. The instant co-ownership was awarded ****00 million won. If there are such circumstances, the auction price of the instant co-ownership was the price of the instant co-ownership ** billion won is the amount significantly exceeding the market price of the instant co-ownership.

CC acquired the instant co-ownership through the instant voluntary auction procedure, and acquired the GG shares through the instant public auction procedure. The acquisition price required for Japan to acquire the instant real estate in its entirety was 1, 1,**,**,***** won (=1,*****,******* won + 2**,*************,*****,***,*****) on the other hand, the aggregate of the appraised values conducted in the instant voluntary auction procedure and the instant public auction procedure was 1,********************************************************?******)*****)’s share in this case for the purpose of excessively recognizing the acquisition price in the future.

In light of the fact thatCC had completed two registrations of seizure for the reason of delinquency in national taxes with respect to the GG shares that had already been paid prior to the acquisition of the instant co-ownership, the public auction procedure was initiated against the GG shares immediately after it acquired the instant co-ownership shares; ifCC is awarded the co-ownership in the instant case, it acquired a preferential right in the public auction procedure for the GG shares in accordance with Article 73-2 of the National Tax Collection Act; and in fact,CC actually purchased the GG shares at a price significantly lower than the appraised value by exercising a preferential right in the instant public auction procedure; it appears that there seems to have been sufficient motive to be awarded the instant co-ownership share at a price lower than the appraised value of the instant co-ownership at a price lower than the appraised value. Accordingly, it cannot be deemed as the actual transaction price solely on the ground that the auction price of the instant co-ownership * 00 million won exceeds the appraised value.

The co-ownership of this case was sold in CC**00 million through the voluntary auction procedure of this case, and 9***,***,**,*** out of the proceeds of sale, except for enforcement costs and corresponding taxes. After these process, 9*,**,***,***, and the plaintiff, who was a joint and several surety of KRK, was exempted from the same amount of guarantee liability. Meanwhile, the proceeds of sale **************,**,****** out of the proceeds of sale *********, ***** out of the costs of execution of the voluntary auction procedure of this case, or the plaintiff was appropriated for the tax to be paid to * Seoul Special Metropolitan City**. In light of these circumstances, the proceeds of auction of the co-ownership of this case*** billion won as the transfer value cannot be deemed to be contrary to the principle of substantial taxation.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just as it is concluded, and the plaintiff's appeal is dismissed.