Seoul Administrative Court 2009Gudan1986 ( August 13, 2009)

Cho High Court Decision 2008Do1455 ( November 14, 2008)

The legitimacy of the assertion that only a simple brokerage of the unregistered transfer taxation disposition was made

In full view of all the circumstances regarding real estate transactions, since the transaction entity is far more likely than the evidence and circumstances that can be seen as the Plaintiff, it is reasonable to deem that capital gains accrued therefrom belongs to the Plaintiff.

The contents of the decision shall be the same as attached.

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 imposition of capital gains tax of KRW 504,051,690 against the plaintiff on February 1, 2008 shall be revoked.

1. Details of the disposition;

A. ○○○○○○○○○-dong 365-2, 365-2, and 2,440 square meters (hereinafter “365-2 land”) were owned by the competentA. B. KimB purchased 496 square meters of the said 365-2 land (hereinafter “one land”) by specifying the location of 496 square meters of the said 365-2 land, and sold the same for KRW 30 million on April 24, 2003, after completing the registration of ownership transfer on the 496/2440 square meters of shares on the 496/240 on the 27th 2003. The buyer, on the same day, reselled this to thisCC again on the 600 million won, and the registration of additional resale was completed on June 20, 2003, which was directly acquired from the last acquisitor on the 2003.

C. Of the above 365-2 land, the Republic of Korea: (a) specified the location of 952 square meters (referring to the remaining part after subdivision of 365-11, 365-12 from the previous 365-2 land; (b) sold at KRW 63,60,000 on April 26, 2003; (c) the purchaser sold at KRW 476 square meters, 1/2 of the same day, at KRW 576,00,000, after further resale; (d) the registration was made on July 11, 2003, while the intermediate process was omitted, and the ownership transfer registration for shares was made on July 11, 2003 from the acquisition authority to the last 476/240,000.

D. The buyer of the sales contract (No. 10 No. 2 and No. 365-2) that purchases the above 1 land from KimB and the 365-2 land from KimB and the NA is called as "Glaf" or "GlaF et al. al.," and the seller's column of the sales contract (No. 1 and No. 2) which resells it to thisCC is called "Glaf" or "G Kim Flaf", and both intermediaries are "Glaf Kim Glaf", and the name of the plaintiff is not specified in the above contract.

E. On February 1, 2008, the Defendant decided and notified the Plaintiff of KRW 504,051,690 of the transfer income tax for the year 2003 (hereinafter “instant disposition”).

[Reasons for Recognition] Facts without dispute, Gap 1, 2, 18 evidence, Eul 1 and 12 evidence, the purport of the whole pleadings

2. Issues of the instant case

The Defendant asserts that the transfer of the land unregistered on 1.2 is the Plaintiff, and that the buyer and the seller entered the land in the contract as KimF merely lent the name of the contract to the buyer and the seller. Accordingly, the instant disposition imposing capital gains tax on the Plaintiff is lawful. Accordingly, the Plaintiff asserts that the acquisition and resale of each of the above land was KimFF, and the Plaintiff was merely the role of delivering the land to the Plaintiff with the resale price received from thisCC.

Therefore, the key issue of the instant case is whether the transferor who transferred land to thisCC is the Plaintiff or KimF.

3. Determination

(a) Facts of recognition;

(1) Of the previous 365-2 square meters of land 952, as seen earlier, the ownership transfer registration for shares was made on June 2, 2003 with respect to the portion 1/2 of the remainder 1/2, excluding the portion of the land sold to thisCC, and 476 square meters (hereinafter “3 land”).

(2) In addition, Agree owns 365-6 393 m2, adjacent to the above 365-2 land (hereinafter referred to as "4 m2"). Agree on December 20, 202, the sales contract was sold by the purchaser around December 20, 200 (the sales contract is divided into “three other than GimF”, “the purchase price is KRW 192,50,000 (Evidence No. 18-1), and the purchase price is KRW 212,40,000 (Evidence No. 16), and the transfer registration was completed in the name of H as of January 17, 2003, and again, the ownership transfer registration was completed in the name of H on July 21, 2003.

(3) Park HH reported the transfer income tax of selling the said 4 land to J for KRW 202,00,000,000. However, on February 1, 2008, Park HH gave notice of imposition of KRW 136,79,857 on the ground that Park HH was confirmed to have sold the said 4 land in KRW 455,00,000, and that it was confirmed that Park HH paid the said KRW 455,000,000, which was concluded between Park HH and thisCC, the Defendant withdrawn the aforementioned request for review and paid the said notice amount in full on February 28, 2008.

(4) At the time of the transaction of each of the above lands, KimF was involved in the mediation by establishing a relationship with the office of the ○○○○○○○○○ △-dong △△△-dong, and making a physical introduction by paintinging a single unit of each of the above lands. During the process of the purchase of each of the instant lands, the seller was in charge of the transaction, such as the settlement of contractual terms and conditions, and the payment of the purchase price, etc.

(5) From March 24, 2003 to June 23, 2003, thisCC paid to the Plaintiff an amount equivalent to KRW 1.633 billion in total of the purchase price of land 4.2.4 billion (the land price ＋ KRW 600 million in total + KRW 576 million in total + KRW 450 million in total of the purchase price of land 4.4 billion in total) as account transfer or check, etc. The details are as follows.

(6) Meanwhile, from December 20, 2002 to January 15, 2003, Park H paid the same amount as the following table to Kim F and A.

(7) In addition, from March 24, 2003 to November 25, 2003, the Plaintiff paid to KimF the amount of the following specifications.

[Reasons for Recognition] Gap 3, 4, 13, 14, 16, 27, 28, 29 (including partial numbers) and Eul 15 each entry

(b) The person to whom capital gains accrue;

(1) When compiling the above facts, if the transferor acquiring the instant land 1 and 2 and resells it to thisCC as the defendant's assertion, and KimF is the plaintiff and KimF merely lent the name of preparation of the contract and mediated it, the plaintiff is naturally entitled to 93,360,000 won (=30,000,000 won for the purchase price of one land + KRW 365-2,000,000 for the purchase price of the previous 365-2 land + KRW 365,60,000,000 for the purchase price of the previous 365,20,000,000,000 for the previous 365-2 land and the remaining 1/2,000,000,000 won for the remaining 1 and 365-2,000,000 won for the purchase price for the land which the plaintiff is obligated to pay to Park H.

Therefore, if the transferor is the transferor, the plaintiff would transfer the above KRW 93.6 million to KimF as the purchase price to be paid to NA, etc., and it is contradictory to the fact that KimF paid KRW 1.26 billion (including the amount of direct remittance to NA). On the contrary, if the transferor is the transferor, the plaintiff would have paid KRW 1.176 million (the amount of KRW 1.66 billion (the amount calculated by deducting KRW 1.631 billion from the total amount of KRW 1.631 billion, which the plaintiff or his wife sold separately from CC, at least KRW 45.65 billion), the transfer price of 3 land (the price of KRW 97.6 million, but the sale price of the land cannot be determined in light of the contract but at least KRW 1.66 billion, the additional payment price of KRW 27.6 billion cannot be deemed to have been demanded to be paid to the plaintiff or the plaintiff, the actual area of which is similar to the actual area of the land.

With respect to this, KimF claimed by the Plaintiff as the transferor, the amount equivalent to the purchase price under the purchase contract, out of the amount remitted from the Plaintiff, shall be delivered to the seller, including NAA, and the remainder, shall be withdrawn in cash as the Plaintiff left and returned to the Plaintiff again. On the other hand, the Plaintiff asserted that, in the previous case, KimF, the Plaintiff asserted that, while acting as the transferor, KimF would have inflicted damage on the Plaintiff while mediating the exchange contract on real estate in Do, Dong-dong, Seoul Special Metropolitan City, in which the Plaintiff owned by the Plaintiff, and Do-dong, Dong, and

With respect to the testimony of KimF, among the arguments contrary to the above, there is no reasonable ground for the plaintiff to obtain a return of the excess amount in cash when the plaintiff remitted more amount than the purchase price to the seller, and there is no reasonable ground to obtain a return of the excess amount in cash (GimF was in the situation where the plaintiff handled the work as the plaintiff did at the time, and the plaintiff unilaterally withdrawn the excess amount and changed it again). The fact that the plaintiff returned the excess amount, such as the testimony, to the plaintiff, is a problem that there is no objective evidence to acknowledge it except KimF's testimony.

On the other hand, the Plaintiff’s assertion that KimF had a damage claim in the case of an apartment exchange contract in Do, Do, Do, Dong, KimF, for the case of the above exchange contract (199) recognized by the witness KimF’s testimony, it is difficult to deem that there was a substantial damage to the Plaintiff due to such transaction (if there was a loss, it is so long as the real estate price located after exchange was determined, but the apartment price in Do, Do, Do, was not increased and the result was not exchanged). Accordingly, there is no trace of any specific measure taken by the Plaintiff, such as the Plaintiff’s demand for compensation for damage recovery until four years or more after the sale of the above three land. On the other hand, there is no evidence to view that KimF, at the time of the sale of the three land, recognized the Plaintiff’s liability for damages against the Plaintiff and agreed to the reduction of the price. In addition, if the Plaintiff’s assertion that the purchase price was KRW 2.96 billion,000,000,000 won,000 won, it is still difficult.

(2) The Plaintiff’s assertion that the subject who acquired and reselled the instant land 1 and 2 from the GEA, etc. based on the contradictory assertion and recognition as above is acceptable in light of the following points. First, the Plaintiff’s assertion that the purchaser and the seller in the purchase and resale contract, such as the above recognition, are KimF, and the Plaintiff’s name appears to appear in the relevant disposal document. Furthermore, as mentioned earlier, if the purchaser and KimF are only brokers, it is not reasonable that the Plaintiff remitted more amount than the amount that the Plaintiff had to pay to KimF. The KimF’s testimony that returned the excess amount did not have any additional explanation as to the reasons why the Plaintiff would dispose of the excess amount, and that it would be unreasonable for the Plaintiff to participate in the sale of land 1 and 2 in any form, such as the purchase price of the land from the GEA, etc., and that the Plaintiff did not directly engage in the sale of the land in the process of the purchase, and that the Plaintiff did not have any consistency with the Plaintiff’s ownership transfer registration in the instant land 43rd.

However, the purchase of the instant land 1 and 2 and resale to thisCC are only one of the Plaintiff and KimF. In light of all the following circumstances acknowledged by the purport of each of the statements (including partial numbers) in the evidence Nos. 2 and 18 of the Plaintiff and KimF, and the testimony and arguments of KimF of the Party, it is reasonable to deem that the transaction entity is much more likely to be the Plaintiff, and thus, the transfer income therefrom belongs to the Plaintiff.

① At the time of each of the above transactions, the Plaintiff was actively involved in speculative transactions upon requesting the color of nearby real estate and requesting to engage in speculative transactions, in the situation where the land located in ○○-dong was discussed as the candidate for the relocation of the office building of the ○○ Northern District Prosecutors’ Office.

② Of the above transactions, the third and fourth lands were transferred to the Plaintiff’s wife’s name. Among them, four lands were resold, and the transfer income tax for them was paid. However, the overall form of the transaction, such as the method of indicating the contracting names of each sales contract, the temporal distance between the purchase and resale, the method of disposing KimF to the front in the contract process, and the fact that the subsequent purchaser is the Plaintiff and only the Plaintiff, is almost the same as the one of the instant 1 and 2 lands. As such, the 1 and 2 lands are also presumed to be the subject of actual acquisition and resale as the said 3 and 4 lands.

③ On April 25, 2003, the Plaintiff directly remitted KRW 70 million, which is a part of the purchase price of the said land 1 and 2, to the competentA, the first seller.

④ It is difficult to readily believe that the Plaintiff, who is a public prosecutor of the public prosecutor’s office, had previously conducted an investigation as a suspect and had offered KimF the same position as the office members of the real estate broker office only to arrange for the purchaser of unregistered resale without any consideration. At the time, KimF’s property status, etc. was not enough to lead the above scale of transactions.

⑤ If the transferor is the transferor, it is very exceptional to deal with thisCC, which is a direct counterpart to the resale transaction, only once more than once in the process of the said several recommendations, with the Plaintiff only by mutual agreement with the Plaintiff, such as determining the resale price and delivering the proceeds. In addition, in the process of the said resale, the processing of all contractual relationship, such as the Plaintiff’s acquisition of the contract and transfer of the contract, is much more natural than the time when the actual seller of the resale contract is not the KimFF, but rather the Plaintiff, as the actual seller of the resale contract.

(6) The reason why the Plaintiff, even if the seller of a resale contract is KimF, paid the purchase price in full to the Plaintiff, and again transferred the purchase price to KimF, is that the Plaintiff, who is a public official, was re-rout in the middle because thisCC was not aware of KimF, the seller of the resale contract. However, under the circumstances where such speculative short-term resale was conducted, the Plaintiff’s involvement in the process of delivering the purchase price in the above-mentioned annual interest is rather equivalent.

7) If KimF, like the Plaintiff’s assertion, had tried to help the Plaintiff recover the damages due to the fact that the KimF incurred the damages in the process of mediating the exchange of apartment units in the Dong-dong of Do, Do, and Do, it would be possible to support the Plaintiff to acquire and resell appropriate things so that the Plaintiff can earn profits by acquiring and reselling them. However, it is natural that KimF would rather play a role in arranging and introducing the buyer in obtaining profits from resale by purchasing unregistered real estate.

8. In full view of the details of financial movements between the Plaintiff, KimF and thisCC, the following table is as follows:

Ultimately, the purchase price to be paid by KimF to NA, etc. is KRW 1.146 million, and the amount received from the Plaintiff’s husband and wife is KRW 1.4772.6 million (including the amount transferred directly from the Plaintiff to NA), and the Plaintiff was paid KRW 1.631 billion more from CC. As a result, the Plaintiff was paid KRW 1.66 million to KimF. As a result, there was a difference between the above amount and KRW 326.6 million (The GF itself returned all of the above amount to the Plaintiff. However, if the Plaintiff was actual purchaser, it is reasonable to see that the FFF itself, who had caused the above transaction, was also paid a reasonable brokerage fee. In addition, it is reasonable to see that the Plaintiff’s husband and wife received the difference between the amount remitted from CC and the amount paid to Kim FF, etc., and that the Plaintiff’s purchase price is KRW 1.5766 billion,000,000,000,000).

4. Conclusion

Therefore, it is reasonable to view that the actual subject acquiring the instant land 1 and 2 and resell it to thisCC is the Plaintiff. Therefore, the instant disposition imposed on the Plaintiff on the transfer margin is justifiable. Therefore, the Plaintiff’s claim seeking revocation is justifiable. Therefore, the judgment of the first instance court that dismissed the Plaintiff’s claim is justifiable, and it is so decided as per Disposition by the Plaintiff.