Suwon District Court-2017-Gu Group-9719 ( October 17, 2018)

The propriety of the disposition imposing the tax on the actual right holder in consideration of the Plaintiff

If assets are transferred to a third party and capital gains are attributed to the title truster upon the transfer of assets by the title truster, the person liable to pay capital gains tax under the substance over form principle under our tax law is not the person liable to pay the relevant capital gains tax, the title truster, the subject of the transfer, and the title truster

Article 14 (Principle of Over Form Taxation)

2018Nu70723 Revocation of Disposition of Imposing capital gains tax

○ Kim

○ Head of tax office

Suwon District Court Decision 2017Gudan9719 Decided October 17, 2018

May 24, 2019

July 5, 2019

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The imposition of transfer income tax of 2009 on the Plaintiff on January 19, 2017*** (including additional tax) shall be revoked.

2. Purport of appeal

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

1. Quotation of judgment of the first instance;

The reasoning for the judgment of the court in this case is the same as the reasoning for the judgment of the court of first instance, except for the following addition or dismissal, and thus, it shall be cited in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the

○ Part 3 of the 3th decision of the first instance court was delivered, “The following is added:

The defendant asserts to the effect that the plaintiff's domicile stated in the above document is not reliable since it is not consistent with the plaintiff's domicile at the time of the plaintiff's resident registration. However, according to the evidence No. 3, the address stated in the above performance letter (*******Gu*7-**) appears to be the address that the plaintiff was living together with the plaintiff's parent, and the plaintiff's resident registration address (****** Dong***** Dong***********2****)) is confirmed to be in the number of members with the plaintiff's workplace. Accordingly, the plaintiff's assertion that the above performance letter is a document that lends the purchaser's name and has a possibility of disadvantage in the plaintiff's workplace, and that the plaintiff's address was recorded with his parent without entering his resident registration, and it cannot be concluded that the above performance letter was a voluntary document after the plaintiff's work."

○ Part 3 of the first instance judgment, No. 18 of the third instance judgment, "the first instance judgment became reasonable," and the following are added thereto:

The defendant asserts that since the deposit point of KRW 1,210,00, which was deposited in the plaintiff's loan account on November 7, 2008, is "the Saemaul Depository*** branch in the vicinity of the plaintiff's workplace", it is reasonable to regard that the plaintiff has made a deposit in his own account.*** has failed to properly disclose the source of funds to acquire the purchase right of this case, and** has obtained the purchase right of this case other than the purchase right of this case with its acquisition fund, or has made a joint investment with the plaintiff on the purchase right of this case.

However, even if the Plaintiff paid KRW 1,210,00 as above, the remaining interest payment appeared to have been ***. In addition, witness* at the court below testified to the effect that, at the time of the acquisition of the ownership of the instant several shares, ‘the purchase price other than the money loaned under the name of the Plaintiff was borne by the witness, and that at that time, it is only impossible to memory as it was shipped out from a large number of borrowed accounts,' and there is no circumstance to suspect the credibility of the testimony.* Other note * has not been submitted at the court below to support the Defendant’s argument that the Plaintiff would have acquired another ownership of the instant shares out of the ownership of the instant shares or invested jointly with the Plaintiff regarding the ownership of the instant shares.’

Part 5 of the judgment of the first instance court stated "The appeal was lodged............................., the appeal was rendered on June 25, 2019 (*** District Court Decision 2018Na1***, June 25, 2019)."

2. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.