Suwon District Court 2007Guhap1564 (No. 27, 2008)

The legitimacy of the assertion that transfer margin has been over-paid on account of the non-registered transferor in the middle

The reason is that the registration of ownership transfer has been made by the method of the intermediate omission registration through the resale of unregistered real estate, and that the Plaintiff’s voluntary report on capital gains tax in relation to the instant sales contract may be deemed to have been made for the convenience of the unregistered seller, so the disposition that deemed to have been directly transferred is unreasonable.

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

Article 94 (Scope of Transfer Income Tax of the Gu)

Article 96 (Value of Transfer)

1. Revocation of a judgment of the first instance;

2. The Defendant’s disposition of imposition of capital gains tax of KRW 228,092,170 for the Plaintiff on January 9, 2006 shall be revoked.

2. All costs of the lawsuit shall be borne by the defendant.

same as the entry.

1. Details of the disposition;

A. (1) On July 23, 2001, the Plaintiff purchased a building of 65-○○○○2, a site of 717 square meters and its ground (hereinafter referred to as the “each of the above real estate”) from Suwon-si, Suwon-si, Suwon-si, and completed the registration of ownership transfer on August 21, 201.

(2) Meanwhile, 55.68/717 shares of the above land were donated to Suwon on November 1 of the same year.

B. As to the above land’s 661.32/717 shares and its ground (hereinafter “instant real estate”), the ownership transfer registration was made in the name of ○○ on the 6th day of April 2002 on the ground of sale on April 4, 2002.

C. On April 6, 2002, the Plaintiff calculated the transfer value of the instant real estate as KRW 605,00,000, and the acquisition value as KRW 575,000 and reported the transfer income tax to the Defendant.

D. The Defendant confirmed, through a tax investigation, that the transfer value of the instant real estate was KRW 1,015,00,000, and calculated gains from transfer as KRW 1,015,000,000, and calculated gains from transfer as KRW 530,347,00 (the acquisition value calculated on the size of 661.32m2m2m2, excluding the portion of donations), and determined and notified the Plaintiff on January 9, 2006, as well as KRW 228,092,170, which reverts to the year 2002 (hereinafter “instant disposition”).

E. On July 14, 2006, the Plaintiff filed a request for a trial with the National Tax Tribunal on March 7, 2006, but received a decision of dismissal on January 19, 2007, and filed the instant lawsuit on April 9, 2007.

[Reasons for Recognition] Evidence No. 5-1, 2, Evidence No. 7, Evidence No. 1-2, Evidence No. 2, Evidence No. 2-1 through 5, and Evidence No. 4-1 through 3, and the purport of the whole arguments and arguments No. 4-3

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) On September 25, 2001, the Plaintiff sold the instant real estate to Ma○○, and thereafter, Ma○○ had sold the instant real estate to Ma○○, so the registration of ownership transfer was directly transferred from the Plaintiff to Ma○○, by the method of intermediate omission registration. Therefore, the instant disposition based on the premise that the Plaintiff directly sold the instant real estate to Ma○○, is unlawful.

(2) The defendant's assertion

If the Plaintiff did not present a written contract and financial data to confirm that the Plaintiff transferred the instant real estate to YOB, the instant disposition that the Plaintiff was the seller is lawful, as long as it stated in the seller’s column of the contract submitted as evidence.

(b) Related statutes;

Article 94 (Scope of Transfer Income Tax of the Gu)

Article 96 (Value of Transfer)

(c) Fact of recognition;

(1) The Plaintiff’s real estate purchase process

(A) Around July 2001, the Plaintiff, an appraiser, jointly acquired ○○ Construction Co., Ltd. (hereinafter “○○ Construction”) for operating a real estate development project with Ison, for a total amount of KRW 500 million. The Plaintiff borrowed KRW 500 million of the above acquisition fund from ○○○○.

(B) During the process of borrowing the above money, Lee Jong-seok decided to purchase each of the above real estate that was intended to purchase from Lee Il-seok's right on the ground of Lee Il-seok's request and decided to purchase it in the assets of ○○ Construction. It was suggested that Lee Lee Lee-seok purchased it in the name of Lee Il-seok's credit bad, and it was also likely that it would not purchase it in the name of ○○ Construction.

(C) On July 2001, the Plaintiff purchased each of the above real estate from ○○○ in the amount of KRW 605,000,000, and completed the registration of ownership transfer in the name of the Plaintiff on August 21, 2001. The Plaintiff paid the purchase amount as a total of KRW 600,000,000, which was loaned from ○○ Credit Depository and ○○ Credit Depository with each of the above real estate as security, and the acquisition tax was

(D) The Plaintiff owned 20% of the shares of ○ Construction and 80% of the shares, and the Plaintiff became the representative director of ○○ Construction taking into account that ○○ was a person with bad credit standing.

(2) 원고와 ㅗ임○덕 사이의 매매 등

(A) On August 25, 2001, ○○○ Construction Co., Ltd. (hereinafter “○○ Construction”), which was a real estate development business entity and operated ○○ Comprehensive Construction Co., Ltd. (hereinafter “○○ Comprehensive Construction”), lent three copies of promissory notes (a total amount of KRW 300 million) issued for ○○ Comprehensive Construction, and used them at a discounted price in the name of ○○ Construction.

(B) In the process of borrowing the above Chapter 3 of this Promissory Notes, this paper prepared a false contract agreement between ○○ Construction and ○○ Comprehensive Construction, and the said Chapter 3 of this Promissory Notes was faced with a crisis due to the failure of ○○○○○ to take the responsibility for each of the said Promissory Notes, thereby making it difficult for the Plaintiff and the representative director of ○○ Construction to be exempted from criminal liability. While referring to the issue of Chapter 3 of the said Promissory Notes, I expressed to the effect that if ○○○ transfers all of the rights to dispose of each of the said real estate to the Plaintiff himself/herself, I would like to resolve such difficulties as the Plaintiff’s above. The Plaintiff intended to escape from the above crisis and to accept the above proposal of ○○○○’s above.

(C) Around September 25, 2001, the Plaintiff concluded a sales contract with the Maduk, stating that there is a loan obligation of KRW 600 million with respect to each of the above real estate, and that there is a default of acquisition tax of KRW 28,760,00,000, and entered into the said sales contract with the Maddong to acquire the above loan obligation and the above delinquent acquisition tax in lieu of the payment of the above sales amount, and transferred the entire right to dispose of the above real estate to the Maddong. After that, the Maduk had paid part of the interest on the above loan in the name of ○○ Construction.

(3) Unregistered resale of Maccoon

(A) After having taken over each of the above real estate from the Plaintiff as above, on the ground that ○○○ was not paid KRW 500 million as the acquisition price of the above real estate and the ownership of ○○ Construction was on the side of ○○○○○○○○○ level, through an agreement with Dao Investment ○○ level, to transfer each of the above real estate to ○○○ level. In addition, ○○ level did not have the ownership transfer, ○○ level sent a certificate of details of the termination of the contract to the Plaintiff, who was the owner of the above real estate, respectively.

(B) On April 4, 2002, on the instant real estate, excluding the portion of donation, as seen earlier, with a ○○○○○, entered into a sales contract with a 1,015,000,000 won on the instant real estate, on which ○○○, in lieu of the partial performance of the sales contract, had the seller take over the above loan obligations (hereinafter “the instant sales contract”). However, in consideration of the fact that the sales contract in question is unregistered resale, the seller as the Plaintiff, entered ○○○ as the Plaintiff’s agent, and affixed ○○○○○○’s seal on the seal of ○○○○○. The ○○○ received the remainder of the sales contract, excluding the above loan obligations, from a ○○○○, and paid the said delinquent acquisition tax related to the instant real estate.

(4) Plaintiff’s report of capital gains tax

(A) In order to look at the convenience of ○○’s unregistered resale, the Plaintiff made a voluntary report of capital gains tax as if the instant real estate was transferred from the Plaintiff to ○○○○ as seen earlier, with the belief that the Plaintiff would not cause any problem of capital gains tax in relation to the report of capital gains tax regarding the instant sales contract.

(B) After purchasing the instant real estate as above, the tax investigation was conducted on April 25, 2005 by stating that the purchase price of the instant real estate on a fixed date is KRW 1,015,00,000 in the process of selling it to another person and reporting the transfer income tax.

(C) On September 2005, the Plaintiff revealed that it is not the Plaintiff, but the seller of the instant sales contract in the process of the said tax investigation, but was unable to disclose it by his refusal to cooperate with ○○ and Madon. On October 28, 2005, the Plaintiff filed a lawsuit against Madon, Seoul Central District Court 2005Gahap97618 against Madon in order to secure data relating to the unregistered resale of Madon, and then withdrawn the lawsuit thereafter.

(5) The plaintiff's criminal complaint

On June 2008, when the instant case had been pending in this court, the Plaintiff filed a criminal complaint on the charge of fraud with the charge of committing fraud. In the course of investigation, Maduk stated to the effect that he/she acquired the real estate of this case from the Plaintiff during his/her investigative process, and that he/she reselled the instant real estate to ○○○.

[Reasons for Recognition] Gap's evidence 1 through 4, 6 through 11, 13 through 15, 17 through 22, 24 through 30, 32, 34, 35, 37 through 52, Gap's evidence 5, 12, 16, 31, 33, and 36-1 through 4, Eul's evidence 23-2, Eul's evidence 23-3 through 5, Eul's evidence 3, Eul's evidence 4-1 through 3, and Eul's evidence 5-1 through 4

D. Determination

(5) The imposition of capital gains tax on the first seller on the premise that the purchaser of the real estate acquired the ownership by the intermediate registration method is illegal (see Supreme Court Decision 87Nu58, May 12, 198). However, the Plaintiff filed a report on capital gains tax by directly selling the real estate to the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s transfer of the real estate in the name of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, which was not a party to a civil lawsuit against the ○○○○○○○○○○○○○○.

Therefore, the disposition of this case based on the premise that the Plaintiff is the actual seller of the sales contract of this case is unlawful.

3. Conclusion

Therefore, the disposition of this case shall be revoked, and the plaintiff's claim of this case shall be accepted due to its reasons, and the judgment of the court of first instance shall be revoked and the disposition of this case shall be revoked and it is so decided as per Disposition.