If income accrued from the transfer of real estate reverts to the title truster, capital gains tax

Since the claimant's actual right to dispose of the land is recognized to transfer the land in this case and receive the purchase price, the person liable to pay the transfer income tax on the transfer of the land in this case under the substance over form principle is not the plaintiff.

1. The Defendant’s disposition of imposition of capital gains tax of KRW 122,478,720 against the Plaintiff on July 7, 2004 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

On May 7, 2004, the head of ○○○ National Tax Service conducted an speculative survey on real estate in the housing site development zone at ○○○○○○○○○○○○○○○○○○○○○○○○○ on February 22, 2002, and the Plaintiff acquired a parcel of land from ○○○○○○○○○○-dong 803-15 site 216.4 square meters (hereinafter “instant land”). On June 15, 2002, he notified the Defendant of taxation data that he transferred the parcel of land to ○○○○○○○○○○ on June 15, 202. The Defendant deemed that the Plaintiff acquired and transferred the instant land, and imposed KRW 122,478,720 on the Plaintiff (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, entry of evidence A1 to 3, purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

Although this case’s land was acquired in the Plaintiff’s name and received the purchase price was confirmed by the relationship of payment of the purchase price, which is not the actual ownership of the purchase price of the pertinent land, the instant disposition imposing income tax on the Plaintiff, who is not Lee○, etc., is unlawful as it violates the principle of substantial taxation under the Framework Act on National Taxes.

(b) Related statutes;

【National Tax Basic Act

Article 14 (Real Taxation)

(1) If the title to the income, profit, property, act or transaction subject to taxation is nominal and there is another person to whom such title belongs, the tax-related Acts shall apply to such person to whom such title belongs as a taxpayer.

/ Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005)

Article 94 (Scope of Transfer Income)

(1) The transfer income shall be the following incomes generated in the concerned year:

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

C. Determination

(1) If a title truster transfers real estate to a third party and income from such transfer was attributed to a title truster, under the principle of substantial taxation under Article 14(1) of the Framework Act on National Taxes, if the title truster, who is the subject of the transfer, is not a title truster, but a title truster, who is the subject of the transfer, becomes a taxpayer (see, e.g., Supreme Court Decisions 80Nu545, Jun. 9, 1981; 93Nu517, Sept. 24, 1993).

(2) Comprehensively taking account of the overall purport of the arguments in this case’s health account and evidence Nos. 5 through 10 (including the virtual number), the non-party ○○○ (the death of April 3, 2004) sold the instant land in the name of the Plaintiff from ○○○○○○○○○, a plaintiff’s misinception, in the name of the Plaintiff. Around June 2002, the buyer sold the instant real estate to ○○○○○○○○○○○ KRW 422,50,000. Under the sales contract, the buyer’s name was changed to ○○○○○○○ (the latter change to ○○○○○). At that time, the seller’s name was changed to ○○○○○○, a nominal owner of the instant land. The seller’s name was entered in the sales contract on behalf of ○○○○○, and Kim○○, a down payment of KRW 5 million was paid to 300,2000.2.

According to the above facts, it is recognized that ○○ is a person who is de facto authorized to dispose of the land of this case and is transferred the land of this case and received the purchase price, and thus, under the principle of substantial taxation, the person liable to pay capital gains tax on the transfer of the land of this case is not the Plaintiff

Therefore, the disposition of this case based on the premise that the person liable to pay capital gains tax on the transfer of the land of this case is the plaintiff is illegal.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.