Busan District Court-2017-Gu Partnership-21396 ( October 20, 2017)

In principle, the tax authority bears the burden of proving the existence of tax base, etc. even if there is a difference between the parties to whom transactions substantially accrue.

Unlike the details of change in the registration of real estate ownership, it is difficult to recognize that the Plaintiff transferred the real estate held in title as the owner of the real estate to the third transferee by the transfer price of the transferee (title trustee).

Article 14 of the Framework Act on National Taxes

Article 92 (Calculation of Tax Base of Transfer Income)

2017Nu2432 Revocation of disposition of imposing capital gains tax

jAA

The director of the tax office of Luxembourg

Busan District Court Decision 2017Guhap21396 Decided October 20, 2017

August 22, 2018

September 12, 2018

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The Defendant’s disposition of imposition of KRW 872,008,420 on September 27, 2016 against the Plaintiff was revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Details of the disposition;

가. 2008. 11. 19. ○○ ○○구 ○○동 ○○-○○ 대 281㎡ 및 그 지상 건물(이하 토지 및 그 지상 건물을 통칭하여 '이 사건 부동산'이라 한다)에 관하여 부산지방법원 ●●●●타경●●●●호로 임의경매절차가 개시되었고, 원고는 위 임의경매절차에서 이 사건 부동산을 합계 5억 2,300만 원에 낙찰받아 그 낙찰대금을 모두 납부하고, 2009. 10. 21. 이 사건 부동산에 관하여 소유권이전등기를 마쳤다.

B. On July 1, 2010, the Plaintiff completed the registration of ownership transfer with respect to the instant real estate to KimB on May 4, 2010, and ② KimB completed the registration of ownership transfer with respect to the said real estate on June 30, 2010.

C. On August 13, 2010, the Plaintiff filed a preliminary return on capital gains tax with the transfer value of the instant real estate as KRW 550 million.

D. Around June 2014, the Defendant conducted an investigation into capital gains tax on the instant real estate, and the KimB only lent the instant real estate to the Plaintiff as an insolvent, and in fact, the Plaintiff deemed that the instant real estate was transferred to thisCC, etc. in KRW 690,000,000, and on September 1, 2014, notified the Plaintiff of the correction and notification of the capital gains tax of KRW 126,91,160 attributed to the year 2010 (i.e., total determined tax amount of KRW 127,68,628,142 - total tax amount of KRW 668,975, and less than KRW 10,00 (hereinafter the same).

E. After that, on June 2016, the director of the Central Regional Tax Office ordered the Defendant to rectify the transfer value of the instant real estate as KRW 1,540,000,000. Accordingly, on September 27, 2016, the Defendant notified the Plaintiff of the rectification and notification of the amount of KRW 872,008,420 for the Plaintiff for the transfer income tax for the year 2010 [= KRW 99,676,569 for the gross determined tax amount + KRW 494,658,450 for the gross determined tax amount + KRW 505,119 for the additional tax + KRW 127,68,142 for the already paid tax amount] (hereinafter “instant disposition”).

F. On December 8, 2016, the Plaintiff dissatisfied with the instant disposition, filed an objection with the director of the Busan Regional Tax Office, but was dismissed on January 19, 2017, and the Plaintiff filed a request for examination with the Commissioner of the National Tax Service on February 13, 2017, but the Plaintiff participated in KimB on May 16, 2017, and the Plaintiff was determined to transfer the instant real estate to thisCC, etc. for KRW 1.54 million.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 2-1, 7, 10, Eul evidence 1, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. Plaintiff’s assertion and relevant statutes

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance. Thus, it is citing this in accordance with Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

B. Determination

1) Article 14(1) of the Framework Act on National Taxes declares the principle of substantial taxation by stipulating that “if the ownership of income, profit, property, act, or transaction subject to taxation is merely nominal and there is another person to whom it actually belongs, the person to whom it actually belongs shall be liable to pay taxes.” Therefore, if there is a separate person who substantially controls and manages it differently from the nominal owner with respect to the subject of taxation, such as income, profit, property, act, transaction, etc., the nominal owner should not be the person to whom it actually belongs, but the person to whom it substantially controls and manages the subject of taxation should be the person to pay taxes pursuant to the principle of substantial taxation. In addition, the determination of whether it falls under such a case should be made by comprehensively taking into account various circumstances, including the circumstance and content of the nominal owner’s agreement, the degree and scope of involvement of the nominal owner, internal responsibility and calculation relationship, and the location of independent management and disposal authority with respect to the subject of taxation. This, in principle, bears the responsibility to prove the existence and tax basis of taxation.

2) In light of the above legal principles, the Plaintiff merely trusted the instant real estate to KimB for the purpose of evading the transfer income tax, and in fact, there is doubt that the Plaintiff transferred the instant real estate to thisCC, etc. in title trust with the purpose of evading the transfer income tax, in light of the following facts which can be acknowledged by comprehensively taking into account the written evidence of Nos. 1 through 3, 5 through 7, 10, 14, and 15 (including the serial number; hereinafter the same shall apply) as well as the written evidence of Nos. 16, 18, 5 through 7, 10, 14, and 15 (including the serial number; hereinafter the same shall apply).

A) The appraisal price of the instant real estate in the voluntary auction procedure in which the Plaintiff acquired the ownership of the instant real estate was KRW 1,436,354,00, and was KRW 1,156,069,210 only the standard market price of the instant real estate in 2010, and the sales contract signed by the Plaintiff and KimB concerning the instant real estate was written by the Plaintiff and KimB on June 10, 2010, stating that the said appraisal price does not reach half of the standard market price or the said appraisal price.

B) On June 2010, 2010, the Plaintiff made an exchange agreement with KimB to exchange the real estate of this case with 5,715 square meters and 2,216 square meters (hereinafter referred to as "real estate of this case") in the instant real estate, while KimB and LeeCC, etc. were present at the Plaintiff, around June 3, 2010, the Plaintiff entered into a sales contract with the content that the Plaintiff would delegate the former right to dispose of the instant real estate of this case, and the KimB and LeeCC, etc. entered into the sales contract with the content that the Plaintiff would exchange the real estate of this case and the real estate of this case in the instant case with the real estate of this case and the payment period of 1,540,000 won and June 30, 2010.

C) The Defendant accused the Plaintiff under suspicion that the Plaintiff entered into a title trust agreement with KimB for the purpose of evading capital gains tax from the transfer of the instant real estate ownership, and that the title trustee KimB completed the registration of ownership transfer of the instant real estate to KimB, thereby violating the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “the case of accusation against violation of the Real Estate Real Name Act”). The Plaintiff stated that the sales contract made between the Plaintiff and KimB at the time of investigation following the above accusation was so-called “the sales contract made between the Plaintiff and KimB at the time of investigation,” and the Plaintiff transferred the instant real estate to KimB for KRW 6.9 million.

D) On July 30, 2014, thisCC completed the registration of ownership transfer on June 30, 2014 with respect to the 1/2 portion of the instant real estate owned by thisCC, and completed the registration of ownership transfer on June 30, 2014. On August 19, 2014, it reported the acquisition value of 1/2 shares out of the instant real estate as KRW 770 million, and the transfer value as KRW 625 million, respectively.

E) KimB is currently missing, and even after acquiring real estate as listed below, he/she did not report or pay the transfer income tax ( omitted).

3) However, in light of the following facts and circumstances, the above facts are not KimB by the actual transferor who transferred the instant real estate to thisCC, and there is insufficient evidence to acknowledge that the Plaintiff obtained compensation for KRW 1,540,00,00,00 from the transfer of the said real estate, and there is no other evidence to acknowledge otherwise, in light of the following facts and circumstances, which can be known by comprehensively taking account of the descriptions of Gap evidence Nos. 2 through 4, 6, and 9-9-5, 9, 10,11, 12, Eul evidence Nos. 9, 11, 11, and 12, as well as the overall purport of thisCC’s testimony and arguments.

A) As long as a person who is registered as an owner of a real estate is presumed to have acquired ownership through due process and cause, KimB is presumed to have acquired the real estate in this case by legitimate procedure and cause, so the fact that the registration of ownership transfer in the name of KimB was based on the title trust is based on the fact that the registration of ownership transfer in the name of KimB is based on the title trust shall have the burden of proof for the defendant who asserts it (see Supreme Court Decision 2007Da9083, Apr.

However, the following circumstances, which can be known by the overall purport of the statements and arguments as stated in Gap evidence 4, 6, and 9-10, namely, ① the plaintiff received from KimB on June 10, 2010 a letter of performance (Evidence 9-5,000 won) that "the plaintiff will additionally pay 1.4 million won to the plaintiff". This is only the measure taken to preserve the difference between the sales price and actual transactions in the multilateral contract as well as the difference between the parties in a title trust relationship, and ② KimB appears to be not documents prepared by the parties in a title trust relationship. Furthermore, KimB acquired the real estate from the plaintiff on June 12, 2010 to the disposal of the real estate by delegation from the plaintiff, and even if any problem arises thereafter, the prosecutor prepared a new letter of performance under the law to prove that the plaintiff's real estate was not liable for the violation of the law, and issued the real estate to the plaintiff 4B on behalf of the plaintiff.

나) 나아가 갑 제2호증, 제9호증의 4, 10, 11, 12의 각 기재에 의하면, ① 2010. 6. 28. 원고의 △△]은행 계좌에 김BB 명의로 5천만 원이, 2010. 6. 30. 원고의 ▽▽▽▽ 농협 계좌에 김BB 명의로 1억 4천만 원이 각 입금된 사실, ② 이 사건 부동산에는 채무자 차AA, 근저당권자 ▼▼▼▼▼▼협동조합, 채권최고액 442,000,000원의 근저당권설정등기가 마쳐져 있었는데, 위 근저당권설정등기가 2010. 7. 1. 해지를 원인으로 말소된 사실, ③ 원고는 2014. 7. 31.경 부동산실명법 위반 고발사건 수사 당시 '매매대금 6억 9천만 원 중 계약금 2천만 원은 현금으로, 5천만 원은 2010. 6. 28. 원고 명의의 계좌를 통해, 1억 4천만 원은 2010. 6. 30. 수표로 각 지급받고, 3억 4천만 원은 원고의 농협에 대한 대출금 채무를 상환하는 방법으로, 나머지 1억 4천만 원은 이 사건 부동산에 관한 임대차보증금채무를 승계하는 방법으로 각 그 지급에 갈음하였다'는 취지의 사실확인서(갑 제9호증의 10)를 작성한 사실을 각 인정할 수 있고, 이에 의하면, 원고가 이 사건 부동산을 양도하고 6억 9천만 원 상당의 대가(= 2010. 6. 12. 2천만 원 + 2010. 6. 28. 5천만 원 + 2010. 6. 30. 1억 4천만 원 + 농협대출금 3억 4천만 원 + 임대차보증금 1억 4천만 원)를 취득하였음은 인정되나, 피고의 주장대로 원고가 이 사건 부동산을 양도함으로써 위 인정범위를 초과하여 15억 4천만 원의 대가를 취득하였음을 인정할 객관적인 자료가 없다.

오히려 갑 제2호증, 을 제9, 11, 12호증의 각 기재와 당심 증인 이CC의 일부 증언에 의하면, ① 김BB는 2010. 6. 23. 양GG과 사이에 이 사건 ◇◇군 부동산과 부산 ○○구 ○○동 ○○-○○ 토지 및 그 지상 건물(이하 위 토지 및 지상건물을 통칭하여 '이 사건 ○○동 부동산'이라 한다) 및 ■■ ■■구 ■■동 ■■-■■ 소재 지상 건물을 교환하는 내용의 교환계약을 체결한 사실, ② 이CC 등은 2010. 7. 2. 김BB의 요구에 따라 양GG 및 박MM에게 이 사건 ◇◇군 부동산 중 각 1/2 지분에 관하여 2010. 6. 30. 매매를 원인으로 한 소유권이전등기를 마쳐준 사실, ③ 양GG은 2010. 9. 1. 김KK에게 이 사건 ○○동 부동산에 관하여 2010. 7. 30. 매매를 원인으로 한 소유권이전등기를 마쳐준 사실이 각 인정되고, 위 인정사실에 의하면, 이 사건 부동산의 교환에 따른 대가는 최종적으로 김KK에게 귀속된 것으로 보일 뿐, 원고에게 환원되어 실질적으로 귀속되었다고 보기는 어렵다.

As to this, although the defendant finally transferred the ownership of the real estate of this case to GimK, Kim K is the difference between KimN, which is related to the plaintiff's claims and obligations, and the plaintiff can be viewed as having received the price of KRW 1.54 million due to the exchange transaction between the above three parties. According to the statement in Gap evidence No. 9-4, the plaintiff was recognized as having remitted money to KimN several times from September 2009 to June 2010, but there is no circumstance that the plaintiff paid the real estate of this case to KimN as the repayment of its obligation. Thus, as long as it is not revealed that the plaintiff paid the real estate of this case to KimN as the repayment of obligation, it is difficult to view that the plaintiff additionally received the price of KRW 8.5 million due to the transfer of the real estate of this case. This part of the defendant's assertion on other premise is without merit.

다) 한편 이CC이 이 사건 부동산 중 1/2 지분에 관한 취득가액을 7억 7천만 원으로 하여 양도소득세 예정신고를 하기는 하였으나, ① 등기부상 김BB로부터 부동산을 양수한 것으로 보이는 김PP, 강QQ 및 김RR, 이CC 등이 각 취득한 부동산을 다시 양도하면서 모두 '과세미달'로 양도소득세를 신고한 점, ② 이CC은 이 사건 부동산의 취득가액을 높게 신고할수록 그에 따른 양도소득세를 줄일 수 있으므로, 원고와 이해관계가 상충될 수 있는 점 등에 비추어 보면, 이 사건 부동산의 양도가액이 15억 4천만 원이라고 단정하기도 어렵다.

C. Sub-decision

Therefore, the actual transferor who transferred the instant real estate to thisCC, etc. is not KimB, and the instant disposition based on the premise that the transfer price of KRW 1,540,000,000 was attributed to the Plaintiff is unlawful without any need to further examine.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.