Daegu District Court 201Guhap5027 (26 September 26, 2012)

Cho High 2010Gu0835 ( November 09, 2011)

Since it is recognized as a title truster, it is reasonable to view that the transfer proceeds accrue.

In light of the fact that the acquisition and transfer price of real estate was all deposited and withdrawn from the Plaintiff’s deposit account, and that the tax authority has partially explained the source of the acquisition fund of real estate and failed to vindicate, it is reasonable to deem that the transfer price was reverted to the Plaintiff.

2012Nu2543 Revocation of Disposition of Imposing capital gains tax

QaA

Head of Namgu Tax Office

Daegu District Court Decision 201Guhap5027 Decided September 26, 2012

March 8, 2013

March 29, 2013

1. The plaintiff's appeal is dismissed.

2. All lawsuits concerning imposition of local income tax among the claims added in the trial are dismissed, and the remainder are dismissed, respectively.

3. The costs of the lawsuit after the appeal shall be borne by the plaintiff.

1. Purport of claim

In the first place, the defendant around October 1, 2009, imposed capital gains tax of KRW 000 on the plaintiff (the claim of KRW 000 on the plaintiff is a clerical error; hereinafter the same shall apply), imposed on December 3, 2012, and imposed penalty tax of KRW 000 on December 17, 2012 (the claim of KRW 00 on the plaintiff is a clerical error; hereinafter the same shall apply), and imposed local income tax of KRW 000 on the plaintiff on December 17, 2012, respectively. In the second place, the defendant imposed income tax on the plaintiff on October 1, 2009, imposed income tax of KRW 00 on the plaintiff, imposed additional income tax of KRW 00 on the plaintiff on December 3, 2012, and revoked each of the above imposition dispositions on additional income tax of KRW 00 on the plaintiff on December 17, 2012, and revoked each of the above imposition dispositions on additional income tax of KRW 2000 on the plaintiff's.

2. Purport of appeal

The judgment of the first instance shall be revoked. The defendant shall revoke the disposition of imposition of capital gains tax of KRW 000 per capital gains tax against the plaintiff on October 1, 2009.

1. Details of the disposition;

A. On October 6, 2005, the registration of transfer of ownership was completed on April 8, 2005 in relation to each of the real estate listed in the separate sheet (hereinafter referred to as the “instant real estate”) owned by the BB Credit Union (hereinafter referred to as the “B Credit Union”), and ② on June 12, 2007, the registration of transfer of ownership was completed on May 22, 2007 (hereinafter referred to as the “transfer of this case”).

B. On June 26, 2007, thisCC made a preliminary return of KRW 000,000,000, capital gains tax on the transfer of this case.

C. On October 1, 2009, the Defendant imposed a transfer income tax of 000 won (one tax of 000 won and additional tax of 000 won) on the Plaintiff for the reason that the Plaintiff was the actual owner of the instant real estate and actually acquired the instant transfer income.

D. On November 13, 2009, the Plaintiff filed an objection with the Director of the Daegu Regional Tax Office, but was dismissed on December 24, 2009, and filed an appeal with the Tax Tribunal on February 19, 2010, but was dismissed on November 9, 201.

"On the other hand, on November 13, 2012, the defendant was pending in the lawsuit in this case against the plaintiff on the ground that the part of additional tax 000 won among the capital gains tax in this case was revoked ex officio on the ground that the type of additional tax and the basis for calculation of the tax amount were not specified, and ② on December 3, 2012, the defendant imposed additional tax 00 won which was revoked as above on December 3, 2012, and ③ on December 17, 2012, the defendant imposed 00 won of local income tax due to the transfer in this case (hereinafter collectively referred to as the "disposition in this case")." [The grounds for recognition], "No dispute exists, and Gap evidence 1, 3, 19, 20 and 21 evidence 9-1 through 13, and evidence 12, and the purport of the whole pleadings, and the purport of the whole pleadings.

2. The plaintiff's assertion

The disposition in this case shall be null and void, and preliminaryly cancelled for the following reasons.

A. The Plaintiff’s mother FF, not the Plaintiff, title trust of the instant real estate to thisCC, and the instant disposition based on the premise that the Plaintiff was title trust is unlawful.

B. Since the ownership transfer registration in the name of thisCC with respect to the instant real estate was made under a contractual title trust, it is the case where the seller is bona fide, the title trustee, as well as in the form of a title trustee, acquired full ownership with respect to the instant real estate, and the Plaintiff is only entitled to claim a return of unjust enrichment equivalent to the purchase price against thisCC, and the transfer price of the instant real estate was attributed to thisCC, and the Plaintiff was paid another benefit (unfair claim for return of unjust enrichment) from the income acquired by thisCC, and even according to the principle of substantial taxation, the person liable to pay the transfer income tax on the instant transfer is not

3. Determination on whether a lawsuit regarding imposition of local income tax is lawful

Ex officio, we examine the legitimacy of lawsuits regarding imposition of local income tax. According to Articles 176-9(1), 176-1(1), and 177-4 of the former Local Tax Act (amended by Act No. 10221, Mar. 31, 2010), while local income tax is to be paid to the head of the Si/Gun/Gu having jurisdiction over the place of payment, and where the head of the tax office collects income tax by means of a correction and decision made under the Framework Act on National Taxes or the Income Tax Act, it is deemed that the head of the Si/Gun has imposed and notified the local income tax at the same time, and thus, even if the local income tax is imposed and notified at the same time, the defendant seeking revocation of such imposition should be the head of the Si/Gun having jurisdiction over the place of payment (see Supreme Court Decision 2004Du1459, Feb. 25, 2005). Therefore, the part of claims for imposition of local income tax against a person without standing.

4. Determination on the imposition of capital gains tax and additional tax

(a) Facts of recognition;

1) On February 26, 1999, the Plaintiff’s vice-E and MaF operated a factory in the name of “GG industry” in the instant real estate, and the Plaintiff’s vice-E and MaF closed down business around 1997, and the Plaintiff’s BB New Cooperatives acquired the instant real estate through a voluntary auction on February 26, 199. However, upon the bankruptcy of the BB New Cooperatives around May 2003, the Korea Deposit Insurance Corporation, a trustee in bankruptcy, sells the instant real estate to thisCC during the public auction process and completed the registration of ownership transfer in the future of thisCC.

2) The funds required to purchase the instant real estate in the name of thisCC are as follows:

(The following table omitted):

3) The usage of the transfer price of KRW 000 due to the instant transfer is similar to the sum of KRW 000 in the transfer income tax reported by thisCC and KRW 000 in the name name lending price of thisCC, among the amounts deposited into the Plaintiff account in the following table, and KRW 00 not transferred to the Plaintiff account.

(The following table omitted):

4) On January 27, 2010, the Defendant requested the Plaintiff to vindicate the source of the instant real estate acquisition fund and the interest on the loan used as the acquisition fund, and 000 won out of the funds used for acquisition 000 won and the interest on the loan and 000 won out of the 000 won which were paid for the acquisition shall be recognized as a supporting amount based on the income data submitted by the Plaintiff, and on the amount for which the remaining sources have not been verified, the Plaintiff deemed the donation and imposed gift tax on the Plaintiff. On January 27, 2010, the Plaintiff paid in full the sum of the amount of gift tax notified without any specific procedure (Evidence 2 and 7 1 and 2).

5) The Plaintiff was accused of violating the Act on the Registration of Real Estate under Actual Titleholder’s Name on the ground that the instant real estate was nominally trusted to thisCC, but was subject to a non-prosecution disposition on the ground that the statute of limitations expired on May 9, 2012 (No disposition of prosecution was issued (No disposition of prosecution) (No. 2012 type No. 1578).

[Ground of Recognition] The non-sured facts, Gap evidence 4, 7, and 17, and Eul evidence 2, and 3 through 7 (including household numbers), and the purport of the whole pleadings

B. Determination

1) Article 14(1) of the Framework Act on National Taxes provides that "if the ownership of income, profit, property, act or transaction subject to taxation is nominal and there is another person to whom such income actually belongs, the person to whom such income actually belongs shall be liable to pay taxes." This provision applies mutatis mutandis to legal relations concerning local taxes pursuant to Article 82 of the former Local Tax Act (amended by Act No. 10221, Mar. 31, 2010), and the fact that such ownership of income is merely nominal, and there is a burden of proof for the claimant to whom such income actually accrues (see Supreme Court Decision 84Nu505, Dec. 11, 1984).

2) The following circumstances acknowledged by the aforementioned facts and evidence, namely, the acquisition funds and the transfer proceeds of the instant real estate were entirely deposited in the Plaintiff’s deposit account; the Plaintiff partially explained the source of the Plaintiff’s acquisition funds of the instant real estate and the interest payment interest on the loans used therefor; and there is no objective data to deem that the transfer proceeds of the instant real estate were reverted to the least FF, not the Plaintiff; and the Plaintiff purchased various lots of real estate, including the Plaintiff from around 2001 to around 2,400, 135 through 18, it is reasonable to deem that the transfer proceeds of the instant real estate was reverted to the Plaintiff; and it is insufficient to find that the transfer proceeds of the instant real estate was reverted to the Plaintiff in full view of the fact that the Plaintiff purchased the instant real estate from around 201 to around 2,400, and that the least FF did not own any assets as the bad credit holders.

(3) Furthermore, if a title truster transfers real estate to a third party and income from such transfer was attributed to the title truster under the substance over form principle, and if a title truster, the title truster, who is the subject of the transfer, is not liable to pay the transfer income tax (see Supreme Court Decisions 96Nu6387, Oct. 10, 1997; 2003Da30616, Dec. 12, 2003; 2003Da30616, Dec. 12, 200). Whether a title truster, who is the subject of the transfer, becomes liable to pay the transfer income tax, is not obliged to pay the transfer income tax under the premise that the title truster actually controls and manages the income in an economic aspect and has a tax capacity to pay income, and the legal assessment of the cause relationship between the transfer of real estate and the transfer of real estate is not necessarily lawful and effective (see, e.g., Supreme Court Decision 201Nu3014, Nov. 10, 1995).

5. Conclusion

Therefore, among the lawsuits in this case, the part of the claims for imposition of local income tax in this case is unlawful and dismissed, and the remaining claims are dismissed as they are without merit, and the judgment of the first instance court which dismissed the claim for revocation of imposition of principal income tax in this case as of October 1, 2009 is consistent with this conclusion. Therefore, the plaintiff's appeal is dismissed, and all of the lawsuits concerning imposition of local income tax among the claims added in the trial, and the remaining claims are dismissed. It is so decided as per Disposition.