If the title of transaction is merely nominal and a person to whom it actually belongs exists, tax-related Acts shall apply to such person to whom it actually belongs as a taxpayer.

It is difficult to see that the sale price of land is distributed or scheduled to be distributed to the members of the plaintiff clan, and that the sale price of land is kept and managed by the plaintiff clan, and the actual owner of the transfer of this case is the plaintiff clan, and the transfer income tax imposed on the plaintiff clan is legitimate

Article 14 of the Framework Act on National Taxes

2016Guhap23937 Revocation, etc. of Disposition of Imposition of Capital Gains Tax

F. F. D. F. W.C.

00. Head of tax office

July 21, 2017

August 25, 2017

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of KRW 000 of transfer income tax for the year 2000, which was made against the Plaintiff on October 000, and KRW 000 of transfer income tax for the year 200, respectively, shall be revoked.

A. The Plaintiff owned a 00-00 square meters of 00 square meters at 00 square meters at 00 square meters at 00-00 square meters at 00 square meters at 00,000 male and female, residing in 00 square meters at 00,000,000 square meters at 00,000 square meters at 00,000,000 square meters at 00,000 square meters at 00,000 square meters at 0,000 square meters at 0,000 (hereinafter “the instant land”).

B. On October 0, 200, the Plaintiff completed the registration of ownership transfer for 40 clan members, including the Plaintiff’s representative KimA, based on the donation contract (hereinafter “the donation contract of this case”). The above 00 clan members completed the registration of ownership transfer for each of the instant land with the purchase price of KRW 000 per clan members from October 0, 200 to October 200, 200 (hereinafter “DDD Construction Co., Ltd.”) as the sales contract (hereinafter “the sales contract of this case”).

C. The Plaintiff reported and paid KRW 00,000 (per head of the clan) according to the gift contract of this case, and the above KRW 00 clans reported transfer gains pursuant to the contract of this case as zero won (acquisition value, KRW 000, transfer value, KRW 000).

D. The defendant is formally entitled to the gift contract of this case in order to evade capital gains tax.

Accordingly, after pretending to make a donation to 00 clan members, it was judged that the land of this case was bypassed to DD Construction according to the sales contract of this case. On October 0, 200, the plaintiff made a correction and notification of 0 won of capital gains tax (including additional tax due to bad faith in payment; hereinafter referred to as "capital gains tax") pursuant to Article 14(3) of the Framework Act on National Taxes and Article 114(1) of the Income Tax Act and Article 47-2(2)1 of the former Framework Act on National Taxes (amended by Act No. 14382, Dec. 20, 2016; hereinafter the same) of 0 won of unfair non-reported additional tax (hereinafter referred to as "additional tax on non-reported tax") pursuant to Article 47-2(2)1 of the former Framework Act on National Taxes (hereinafter referred to as "the disposition of this case"). The plaintiff was dissatisfied with the disposition of this case and dismissed on October 20, 2000.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 1 to 3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) As to the disposition of this case on imposition of capital gains tax

① First of all, in the process of returning the land to a clan member, the land of this case was donated to the representative of a clan member and then sold to DD Construction after it was donated to the representative of a clan member, and the sales proceeds are expected to be distributed to all of the clan members, so the contract and sales contract of this case do not constitute the transfer bypass most of the donation.

② Since the Plaintiff and clan members are not specially related persons, they donated the land to 00 members of the same clan pursuant to the donation agreement of this case, and thereafter transferred the land to the construction of the clan.

Even if Article 101 (2) of the Income Tax Act applies, the Plaintiff cannot be deemed to have directly transferred the instant land to DD Construction.

2) As to the imposition of additional tax on no filing of the instant disposition

Since the act of transferring the instant land to DD Construction according to the instant donation contract and sales contract was not only a legitimate transaction, but also there was no perception that the Plaintiff would evade taxes (transfer income tax) to the Plaintiff, it is difficult to view that the Plaintiff failed to file a tax base return due to “Fraud or other unlawful act while transferring the instant land,” and therefore, it is illegal to impose an additional tax without filing the instant tax.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination on imposition of capital gains tax in the instant disposition - Determination on whether the Plaintiff directly transferred the instant land - Article 14(1) of the Framework Act on National Taxes provides that “where the ownership of the income, profit, property, act or transaction subject to taxation is nominal, and there is a separate person to whom such income, profit, act or transaction belongs, the tax-related Acts shall apply to the person to whom such income, profit, or transaction actually belongs as a taxpayer.” Article 14(3) of the same Act provides that “Where it is deemed that the benefit of this Act or tax-related Acts is unduly obtained by indirect means via a third party or by means of two or more acts or transactions, it shall be deemed that the party directly made a transaction or by deeming that such act or transaction was conducted by a single act or transaction in succession in accordance

The substance over form principle is a practical principle for realizing the principle of equality, which is the basic ideology of the Constitution, in a tax legal relationship. The main purpose of this principle is to regulate unfair acts of tax avoidance and realize tax justice by imposing tax on a place with a tax-bearing capacity, regardless of the form or appearance, in a case where unreasonable form or appearance, which is distinguishable from the actual quality, is taken for the purpose of evading tax burden (see, e.g., Supreme Court en banc Decision 2008Du8499, Jan. 19, 2012).

B) In light of the relevant legal principles and provisions as seen earlier, comprehensively taking account of the following circumstances acknowledged by comprehensively taking into account the overall purport of evidence Nos. 6, 7, 8, 10, 11, 12, and 13 as well as the overall purport of evidence Nos. 7 and evidence Nos. 6, 7, 8, 10, 11, 12, and 13 as to the instant case, it is reasonable to view that, notwithstanding the instant gift contract and the instant sales contract, the Plaintiff actually transferred the instant land directly to DD Construction and the income subject to taxation was actually reverted to

① From October 0, 200 to October 200, 200, immediately before the conclusion of the sales contract of this case, 00 members of the above clan were newly opened, and each of the religious members of the above clan (National Bank) deposited in each of the above accounts. The sales price of the land of this case was deposited in each of the above accounts. Each of the above sales price was immediately deposited in the national bank account in the name of 00 members of the clan, and the same amount of the check was issued and the total sales price was deposited in one time. In light of the fact that each of the above clan members was deposited in the national bank account in the name of 00 members of the clan, it is difficult to view that each of the above clan members of the above clan directly managed the sales price of the land of this case or possessed the right to dispose of it.

② Some of the proceeds from the sale deposited as above amount of KRW 0 billion (the amount of KRW 00 billion reverted to Vice-President KimB);

A gift tax of KRW 00,00, tax agent fees of KRW 00,000, and reserve funds of KRW 00,000) are deemed to have been used for a clan, and the remaining sales proceeds have not been revealed until now. In light of this, it is difficult to see that the sales proceeds of the land in this case were distributed or expected to be distributed to the plaintiff's clan members. Rather, according to the evidence No. 7 and the written reply submitted by KimCC, which was the chairperson of the plaintiff, most of the sales proceeds of the land in this case, it appears that

③ Some clans of the Plaintiff stated to the effect that “When selling the instant land to DD Construction, the transfer income tax of KRW 00 is expected, the Plaintiff allocated 10 of the total 0 doors to 00 and donated it to 00 members of the Do class members by allocating 1 of the Do class members among the total 0 doors. The fact of donation was entirely different, and the Plaintiff sent a personal seal impression, seal, password, etc. for the establishment of the passbook to the general public among the doors, and received KRW 00,000 as the name of the fee. Whether much deposits have been made to the head of the passbook, and how to withdraw.”

④ Meanwhile, the Plaintiff asserts to the effect that the Plaintiff and the clan members of the same clan do not constitute "specially related persons" under Article 101 (2) of the Income Tax Act, and thus they cannot impose capital gains tax on the Plaintiff. However, the instant disposition is not based on Article 101 (2) of the Income Tax Act, and the Plaintiff’s assertion on this different premise is without merit.

2) Determination on the imposition of additional tax on non-declaration of the instant disposition

A) Article 47-2(2) of the former Framework Act on National Taxes fails to file a tax base return under the tax-related Acts by the statutory due date of return due to an unlawful act, 40/100 of the amount to be paid without tax return.

Article 12-2(1) of the Enforcement Decree of the Framework Act on National Taxes provides that "the amount equivalent to 60/100 shall be the penalty tax in the event of failure to report the tax base of national taxes due to the illegal act in international transactions" and Article 3(6) of the Punishment of Tax Evaders Act provides that "the preparation and receipt of false evidence or false documents" (Article 3(6) of the Punishment of Tax Evaders Act, "the preparation and receipt of false evidence or false documents" (Article 3(6) of the Punishment of Tax Act, "the concealment of property," "the concealment of income, profits, acts, manipulation or concealment of transactions" (Article 4), "the act or other fraudulent act (Article 6)" as the type of "Fraud or other unlawful act."

The legislative purport of Article 47-2(2) of the former Framework Act on National Taxes with respect to an unfair non-reported additional tax is to impose heavy sanctions on taxpayers who violate the duty to report the tax base or tax amount by such unlawful means as it is difficult for the tax authorities to detect the facts that form the basis of calculating the tax base or tax amount of national tax or in the event of fraudulent acts such as creating false facts, etc., or it is difficult for them to exercise their right to impose tax, and thus, it should be deemed that the unlawful act in this context refers to deceptive schemes or other active acts that make it impossible or considerably difficult

B) In light of the above relevant provisions and the purport of the above, the following circumstances, which are considered in light of the overall purport of each of the evidence admitted as a whole, are anticipated to take account of the following circumstances, i.e., the transfer income tax of at least KRW 0 billion is expected to take place when the Plaintiff directly transfers the land of this case to DD Construction; however, in the form of entering into the donation contract of this case and the sales contract of this case, only the Plaintiff is obligated to pay gift tax equivalent to KRW 00,000 if the land of this case is transferred in the form of entering into the contract of this case and the sales contract of this case, and there is a motive that the Plaintiff may reduce a reasonable amount of tax from the Plaintiff’s standpoint. ② The Plaintiff appears to have transferred the land of this case by the same method as this case with the advice of tax experts (the Plaintiff’s tax agent only paid KRW 00). ③ The sales contract of this case was concluded after the completion of ownership transfer registration by each share of this case under the donation contract of this case, and the Plaintiff’s direct transfer and transfer of the land to D.

D. Sub-committee

Therefore, the plaintiff judged that the land of this case was directly transferred to DD Construction

The disposition of this case on which the transfer income tax of this case and the non-reported additional tax are imposed on the High Court is legitimate.

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.

[Attachment]

public official law, order of law,

【National Tax Basic Act

Article 14 (Real Taxation)

① 과세의 대상이 되는 소득, 수익, 재산, 행위 또는 거래의 귀속이 명의(����)일 뿐이고 사실상

If there is another person to whom it belongs, the person to whom it belongs shall be liable for tax payment and tax-related Acts shall apply.

(2) The provisions pertaining to the calculation of tax base in tax-related Acts shall be title or form of income, profit, property, act or transaction.

applicable according to its substance, regardless of its substance.

(3) This Act or a method through which two or more indirect or more acts or transactions are conducted through a third party.

Where it is deemed to unfairly benefit from tax-related Acts, the benefit shall be determined according to the economic substance of the tax-related Acts.

This Act shall be deemed to have made a direct transaction, or to have made a continuous act or transaction.

or other tax laws shall apply.

(1) The former Framework Act on National Taxes (amended by Act No. 14382, Dec. 20, 2016)

Article 47-2 (Additional Tax on Non-Filing)

(2) Notwithstanding paragraph (1), a return of tax base of national tax under tax-related Acts by the statutory due date of return due to unlawful acts.

40/100 of the tax amount to be paid without tax return (in the case of an unlawful act committed in the course of international trade)

The amount equivalent to 60/100 shall be the additional tax if the tax base return is not filed: Provided, That the father shall be the additional tax.

Tax base return (Articles 70 and 124 of the Income Tax Act or Articles 60 and 76-17 of the Corporate Tax Act) by regular acts.

Where a person who fails to make a report under Article 97 (limited to reports under Article 97) is subject to double-entry bookkeeping or corporation.

40/100 of the amount of tax to be paid without filing a return, respectively (or a return of tax base of national tax due to an unlawful act committed in international transactions)

the amount equivalent to 60/100 in case of not doing so) and the amount equivalent to 14/10,000 in case of not doing so.

The greater of the aggregate amount shall be the penalty tax, and a business operator under the Value-Added Tax Act under subparagraph 1 of Article 48 of the same Act shall apply thereto

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Where a taxpayer fails to file a return under Articles 49 (1) and 67, but has a zero-rate tax base.

40/100 of the amount of tax to be paid without filing a return (the return of tax base of national tax due to an unlawful act committed in international trade)

an amount equivalent to 60/100 (60/100) and an amount equivalent to 5/100 of the zero-rate tax base.

the sum of the amounts shall be the additional tax.

【Enforcement Decree of Framework Act on National Taxes

Article 12-2 (Type, etc. of Unlawful Acts)

(1) "Taxes" in Article 26-2 (1) 1 of the Act means fraudulent or other unlawful means prescribed by Presidential Decree.

Punishment of Offenses means the acts falling under any of the subparagraphs of Article 3 (6) of the Punishment of Offenses Act.

m. Punishment of Tax Evaders

Article 3 (Tax Evasion, etc.)

(6) Fraudulent or other unlawful means referred to in paragraph (1) shall be any of the following acts:

Positive acts which make the imposition and collection of taxes impossible or considerably difficult.

1. A false bookkeeping, such as double bookkeeping;

2. Preparation and receipt of false evidence or false documents;

3. Destruction of books and records;

4. Concealment of property, fabrication or concealment of income, profit, act or transaction;

5. Intentionally failing to prepare or keep books of account, or an invoice or tax invoice;

or a list of invoices or a list of tax invoices;

6. Operation of facilities for enterprise resource planning or electronic taxes under subparagraph 1 of Article 5-2 of the Restriction of Special Taxation Act;

Operation of Account Statement

7. 그 밖에 위계(��計)에 의한 행위 또는 부정한 행위

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/ Income Tax Act

Article 94 (Scope of Transfer Income)

(1) Capital gains shall be the following incomes, generated in the relevant taxable period:

1. 토지[「공간정보의 구축 및 관리 등에 관한 법률」에 따라 지적공부(����公��)에 등록하여야

applicable category) quantity of buildings or structures (including facilities and structures attached to such buildings)

Incomes accruing from roads;

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

(a) Rights to acquire real estate (when a building is completed, the acquisition of such building and land annexed thereto;

(including any such rights)

(b) Superficies;

(c) Chonsegwon and registered real estate lease; and

Article 95 (Transfer Income Amount)

(1) The capital gains shall be from the total amount of capital gains pursuant to Article 94 (hereinafter referred to as "transfer value") to 97.

The amount of special deduction for long-term holding of the amount (hereinafter referred to as "special deduction for long-term holding") after deducting necessary expenses pursuant to Article.

shall be the amount after deduction.

§ 100. Calculation of gains on transfer)

(1) In calculating gains on transfer, the transfer value shall be the actual transaction value (the value under Article 96 (3) and Article 114 (7).

Where the transaction example or appraisal value is applied, it shall include the transaction example value, appraisal value, etc.

The acquisition price shall also be the actual transaction price (value under Article 97 (7) and sale and purchase under Article 114 (7).

Where the case value, appraisal value, and conversion value are applied, they include transaction example value, appraisal value, conversion value, etc.

C) The transfer value shall be based on the standard market price, and the acquisition value shall also be based on the standard market price.

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(2) In applying paragraph (1), where the transfer or acquisition value is calculated based on the actual transaction price:

Where land, buildings, etc. are acquired or transferred together, they shall be separated and entered, and land and buildings;

Where the classification is unclear, the Presidential Decree shall consider the standard market price at the time of acquisition or transfer.

common acquisition value and transfer expenses shall be calculated in accordance with the formula. In this case, the common acquisition value and transfer expenses shall be the year.

The calculation method shall be in proportion to the value of the property.

(3) In applying paragraph (2), where land, buildings, etc. are acquired or transferred together, such land, buildings, etc.

If the value of the separate entry is 30/100 or more of the value calculated in accordance with the same paragraph;

The value of land and buildings, etc. shall be deemed unclear.

(4) Matters necessary for calculating gains on transfer shall be prescribed by Presidential Decree.

Article 114 (Determination, Revision and Notification of Tax Base for Transfer Income and Amount of Tax)

(1) Persons who are liable to make a preliminary return under Article 105 or the director of a regional tax office having jurisdiction over the place of tax payment.

Where a person liable to file a final return pursuant to Article 110 fails to file such report, the relevant resident.

The transfer income tax base and tax amount shall be determined.