A party’s assertion that a third party’s transfer of unregistered securities is not the capital gain of the principal

The taxation that the Plaintiff reported as the registration owner on the public register is legitimate, and the Plaintiff’s assertion is not reasonable, and there is no other evidence to acknowledge otherwise, on the ground that the taxation was instituted before the instant disposition was rendered against the purchaser, etc.

Article 94 of the former Income Tax Act (Scope of Transfer Income)

1. The plaintiff's claim is dismissed.

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

Purport of Claim

The imposition of capital gains tax of KRW 228,092,170 on the Plaintiff on January 9, 2006 shall be revoked.

1. Details of the disposition;

가. 원고는 2001.7.23. 유〇〇으로부터 〇〇시 〇〇로2가 〇〇-2〇〇 대지 717㎡ 및 그 지상건물을 매수하여 같은 해 8.21. 소유권이전등기를 마친 후 같은 해 11.1. 위 대지 중 55.68㎡를 〇〇시에 기부채납하였다.

나. 〇〇시 〇〇로2가 〇〇-2〇〇 대지의 나머지 부분 661.32㎡ 및 그 지상건물(이하, '이 사건 부동산'이라고 한다)은 2002.4.4. 매매를 원인으로 같은 달 6. 정〇〇에게 소유권이전등기가 경료되었고, 원고는 2002.4.6. 피고에게 이 사건 부동산의 양도가액을 605,000,000원, 취득가액을 575,000,000원으로 양도차익을 산정하여 양도소득세를 신고하였다. 과세기간의 과세표준 및 세액을 신고하였다.

다. 피고는 세무조사를 통해 정〇〇로부터 이 사건 부동산의 양도가액이 1,015,000,000원임을 확인하고, 양도가액 1,015,000,000원, 취득가액 530,347,000원(유〇〇으로부터의 취득가액 575,000,000원이 대지 717㎡에 대한 것임을 감안하여, 기부채납 부분을 제외한 661.32㎡에 대하여 산정한 취득가액이다.)으로 양도차익을 산정하여 2006.1.9. 원고에게 2002년 귀속 양도소득세 228,092,170원을 결정·고지하였다(이하, '이 사건 처분'이라고 한다)

D. The plaintiff appealed and raised an objection on March 7, 2006. The plaintiff requested a judgment to the National Tax Tribunal on July 14, 2006, but received a decision of dismissal on January 19, 2007, and filed the lawsuit of this case on April 9, 2007.

[Reasons for Recognition] Facts without dispute, Gap 5, 7 evidence, Eul 1, 2, and 4 evidence

2. The assertion and judgment

A. The plaintiff's assertion

On September 25, 2001, the Plaintiff sold the instant real estate by entering into an oral contract with YO on September 25, 2001. Since YO directly transferred to YOO, the instant disposition based on the premise that the Plaintiff sold it to Y* is unlawful.

B. Defendant’s assertion

As long as the Plaintiff did not present a contract and financial data to verify the fact that the Plaintiff transferred the instant real estate to ○○○○○ in the seller column of the contract (Evidence A 1) submitted as evidence, the instant disposition that deemed the Plaintiff as the seller is lawful.

C. Relevant statutes

It is as shown in the attached Form.

D. Determination

1) According to the copy of the register of the real estate of this case, as long as the ownership is directly transferred from the plaintiff to ○○○, and the report of transfer income tax submitted by the plaintiff to the defendant also states that the plaintiff directly sold the above real estate to ○○○○, the defendant is natural to confirm the actual purchase price from ○○, the purchaser, and then impose additional transfer income tax on the difference between the amount and the purchase price stated in the report. Thus, the above real estate ownership is not transferred to ○○, as indicated in the public record, but it is actually transferred from the plaintiff to ○○○, and the burden of proof on the fact that

2) While there is evidence that the ownership of the instant real estate was actually transferred in order of the Plaintiff, ○○, and Ma○○○○○, the said evidence alone is insufficient to admit the Plaintiff’s assertion on the following grounds, there is a witness’s testimony by the Plaintiff, 2, 3, 4, 13, 14, 15, 16, 17, 20, 23, 24, 25, 26, 28, 31, and 43, and by the witness Hong○○ for the following reasons.

A) ① The Plaintiff reported to ○○○○○○○ Construction upon its initial declaration of transfer income tax (○○○○○○○○○○○○○○ Construction’s 4,200 won; the Plaintiff asserted that ○○○○○○○○○○ Construction was merely a voluntary report as if it were transferred the instant real estate to ○○○○○○○○○○○○○. However, the Plaintiff appears to have been able to easily impose transfer income tax on ○○○○○’s sales of the said real estate. As such, the Plaintiff’s assertion that ○○○○○○○ Construction was offered convenience upon ○○○○○○○○○○○ Construction upon ○○○○○○○○○○○○’s 5’s ○○○○○○ Construction upon her initial declaration of transfer income tax, and that she did not directly submit the Plaintiff’s ownership of the instant real estate to ○○○○○○ Construction upon her offering of ownership of the instant real estate at 1,000,0000 won.

B) The Plaintiff asserted that the Plaintiff sold the instant movable property by entering into an oral sales contract with Ma○○○ on September 28, 2001. However, it is extremely exceptional in light of transactional practices to conclude a contract only orally without any documentary evidence in trading the said high amount of real property. As to the method of payment, it is difficult to believe that ○○○○○ bank and ○○ Mutual Savings Bank agreed to take over the Plaintiff’s obligations for loans (600 million won) against ○○○ Savings Bank. However, there is no evidence that Ma○○ actually took over the above obligations, and rather, Ma○○○ purchased the Plaintiff’s obligations by payment method (Evidence 2), Ma○○ stated that ○○ purchased the instant movable property from ○○○○○ at the time of the Defendant’s tax investigation (Evidence 2-3), and that Ma○○ stated that the Plaintiff purchased the instant movable property from ○○○○○○ upon the Plaintiff’s agent’s direct presumption of ownership of the instant real property.

C) As recognized by the Plaintiff himself, the instant real estate is in fact an asset of ○○ Construction. Since around October 201, 201, by acquiring 80% of the shares of ○○ Construction from ○○○○○○, it appears that ○○, a nominal owner, has been delegated with the comprehensive authority over the disposal of the instant real estate by the Plaintiff (the Plaintiff also stated to the effect that ○○○○ was given the authority over the instant real estate to escape from the status of ○○ Construction’s representative). In concluding the sales contract with ○○○, the fact that ○○, a nominal owner, was determined and executed by ○○○, not the Plaintiff, the nominal owner, was completely set up in the front place in the sales contract with ○○○○, cannot be ruled out from the above circumstances (Additionally, the instant real estate was the asset of ○○ Construction, and that ○○ was exercising control over ○○ Construction, a nominal owner’s ownership transfer, and the reason seems to be that ○○ and another transfer of ownership after the sales contract.

On the other hand, the mere fact that ○○ presented the Plaintiff’s certificate of personal seal impression when entering into a sales contract with ○○, and dealt with all relevant acts, such as receipt of sales proceeds, preparation of a contract, and payment of brokerage fees, cannot be readily concluded as a seller’s ○○ in a sales contract with ○○.

3) Sub-decisions

Therefore, the instant disposition based on the premise that the ownership of the instant real estate was transferred from the Plaintiff to Ma○○ is lawful.

3. Conclusion

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

Relevant statutes

○ Scope of transfer income under Article 94 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)

(1) Transfer income shall be the following incomes generated in the relevant year:

1. Income accruing from transfer of land (referring to a lot of land subject to registration as a cadastral record under the Cadastral Act) or buildings (including facilities and structures annexed to such buildings);

2. Income accruing from transfer of any right to the real estate falling under any of the following items:

(a) Right to acquire real estate (including the right to acquire a building upon completion of its construction and its appurtenant land);

(b) Superficies;

(c) Chonsegwon and registered real estate lease; and

Article 96 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)

(1) The transfer value of assets under Article 94 (1) 1 and 2 shall be the standard market value at the time of the transfer of the relevant assets: Provided, That where the relevant assets fall under any of the following subparagraphs, it shall be the actual transaction value between the transferor and transferee (hereinafter referred to as the "actual transaction value"):

1. Where the relevant assets fall under the standard for expensive houses under the provisions of subparagraph 3 of Article 89 (including the land annexed thereto);

2. Where assets are rights to acquire real estates under the provisions of Article 94 (1) 2 (a);

3. In cases of unregistered transferred assets under the provisions of Article 104 (3) or unregistered transferred assets;

4. In the case of the real estate within one year after its acquisition;

Article 114 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005) (amended by Act No. 7837 of Dec. 31, 2005)

(1) omitted.

(2) If any omission or error is found in the details reported by a person who has made a preliminary return under Article 105 or a person who has made a final return under Article 110, the chief of the regional tax office having jurisdiction over the place of tax payment shall

(3) omitted.

(4) Where the head of a regional tax office having jurisdiction over the place of tax payment or the head of a regional tax office determines or revises the tax base of transfer income and the amount of tax under paragraphs (1) through (3), he shall do so under Article 96 (1) 6 and the proviso of Article 97 (1) 1 (a): Provided, That in case where a resident makes a preliminary return or the final return on the tax base of transfer income under Article 96 (1) 6 and the proviso of Article 97 (1) 1 (a), if such returned value is different from the fact and the head of a regional tax office having jurisdiction over the place of tax payment or the director of a regional