Where the registration of ownership transfer has been completed under the name of a trustee pursuant to a three-party registered title trust agreement, and the title truster and the price has been liquidated, the time of real estate transfer

Where the registration of ownership transfer has been completed under the name of a trustee pursuant to a three-party registered title trust agreement, and the title truster and the price has been liquidated, the time of real estate transfer shall be the date the price has been settled.

Article 88 (Definition of Transfer)

Article 98 of the Income Tax Act (Time of Transfer or Acquisition)

2018Nu48555 Revocation of Disposition of Imposing transfer income tax, etc.

AA

BB Director of the Tax Office

May 10, 2019

June 7, 2019

1. Revocation of a judgment of the first instance;

2. The Defendant’s imposition disposition of capital gains tax of KRW 000 on December 10, 2012 against the Plaintiff on December 10, 201, exceeding KRW 000,000, shall be revoked.

3. All costs of the lawsuit shall be borne by the defendant.

the Gu Office's place of service and place of service

The same shall apply to the order.

1. Details of the disposition;

A. On December 29, 2005, the Plaintiff sold each of the real estate listed in Attachment 1’s Schedule (hereinafter collectively referred to as the “real estate of this case”) as indicated in the “Indication of the Plaintiff’s real estate” to KRW 00,000,000 (in case of a contract amounting to KRW 00,000,000,000,000 for intermediate payment to December 29, 2005, the intermediate payment to KRW 00,000,000,000,000 for each payment to January 19, 2006), together with the intermediate payment, the remainder payment to KRW 27,000,000,000 for the transfer of ownership, and the remainder to KRW 300,00,000,000,000 for each of the real estate of this case with the sequence indicated in the “Real Property’s real estate’s title” attached to the cash payment, and the purchaser is exempt from contractual obligation B (B).

B. On December 29, 2005 and December 30, 2005, prior to the payment date of the remainder, the Plaintiff completed each of the instant real estate transfer registration (hereinafter collectively referred to as “the instant transfer registration”) in the name of the purchaser under the instant sales contract.

BB paid part of the purchase price in cash as stipulated in the instant sales contract, and the obligation to assume debt in lieu of the payment of any balance was fully performed on January 20, 2006 by cancelling the right to collateral security on the instant real estate.

C. On February 6, 2006, when the Plaintiff made a preliminary return and payment of transfer income tax to the Defendant, the transfer value of the instant real estate is KRW 00,000,000 [in addition to the instant sales contract, it is the amount stated in each of the approval seal agreements (Evidence 3-2 and 3-3) written in the cause of the instant transfer registration], the transfer income tax is KRW 00,000,000, and the said tax was voluntarily paid (Evidence 1 and 6-1 of the evidence No. 5-1 of this case), and the said tax was voluntarily paid (Evidence 6-1 of the evidence No. 6).

On December 10, 2012 after the tax investigation, the Defendant recognized the actual transaction price of the real estate of this case as KRW 00 million as stated in the sales contract of this case, and notified the Plaintiff of the disposition (including additional tax; hereinafter referred to as the "disposition of this case") to correct the transfer income tax for 2005 as KRW 00,000 (including additional tax) in accordance with Article 114 of the former Income Tax Act (amended by Act No. 8144, Dec. 30, 2006).

On March 8, 2013, the Plaintiff appealed and filed a request for adjudication on March 8, 2013, but the Tax Tribunal decided to dismiss the request on November 14, 2013.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 4-2, 7-1 to 12, Eul evidence 1 to 6-2, and the purport of whole pleadings

2. The plaintiff's assertion

The instant disposition should be revoked on the grounds that it is unlawful for the following reasons.

A. The registration of transfer of this case is null and void since the plaintiff made a registration based on a three-party registered title trust agreement. The registration is null and void. Since it does not fall under the registration of transfer of ownership under Article 162 (1) 2 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19890, Feb. 28, 2007; hereinafter referred to as the "former Enforcement Decree of the Income Tax Act"), the time of transfer of this case's real estate is not on December 29, 2005 and December 30, 2006, but on January 20, 2006, when the purchase price was fully settled. Accordingly, the year when the real estate transfer income of this case was reverted to the plaintiff is not for 205 years but for 2006 years, the disposition of this case under the premise that the transfer income tax was reverted to the plaintiff, including the voluntary 22,700,353 won paid by the plaintiff, was unlawful.

B. The Plaintiff agreed to register the ownership transfer at the request of BBB, the title truster, and thus, the instant sale is null and void by the Act on the Registration of Real Estate under Actual Titleholder’s Name.

C. On February 6, 2006, the Plaintiff only filed a preliminary return on the transfer income tax for the year 2005 with the Defendant, and did not file a preliminary return and final return on the transfer income tax for the year 2006, and the seven-year exclusion period under Article 26-2(1)2 of the former Framework Act on National Taxes (amended by Act No. 11604, Jan. 1, 2013; hereinafter “former Framework Act on National Taxes”) has expired on May 31, 2014, and therefore, it is unlawful that the Defendant issued the instant disposition after the exclusion period has expired.

The plaintiff does not evade national taxes by fraudulent or other unlawful act under Article 26-2 (1) 1 of the former Framework Act on National Taxes. Thus, the period of imposition of the real estate transfer income tax in this case is not ten years, but it is illegal that the defendant applied ten years to the exclusion period of imposition.

D. The transfer value of the instant real estate is not the amount recognized by the Defendant (the price indicated in the instant sales contract) but the total of KRW 000 million, which is written in a document constituting the cause of the instant transfer registration, in addition to the sales contract of this case, written approval form (Evidence No. 3-2, No. 3).

3. Related statutes;

Attached 2 is as shown in the "related Acts and subordinate statutes".

4. Determination as to the plaintiff 2-A's assertion

A. Legal doctrine

1) According to the former Income Tax Act, income is classified into global income, retirement income, capital gains, and forest income and imposed income tax on each income (Article 4(1)); income tax is imposed on the income amount for one year from January 1 to December 31 (Article 5(1)); and income accruing from the transfer of land or a building is the income generated in the pertinent taxable period (Article 94(1)1).

According to the "Act on the Registration of Real Estate under Actual Titleholder's Name", "title trust agreement" refers to an agreement between a person who holds, or has acquired, the ownership or other real rights to real estate and another person, that a person who has the actual right to the real estate holds or has to hold the real right to the real estate internally and another person, and that another person's name will make the registration thereof be made (Article 2 subparagraph 1), a title trust agreement becomes null and void (Article 4 (1)), and a change in the real right to the real estate made by the registration pursuant to a title trust agreement is null and void (Article 4 (2)).

The distinction between whether a title trust agreement is a three-party registered title trust or a contract title trust is determined as a matter of which the contracting party becomes final and conclusive. Even if a contracting party is deemed a title trustee even if the contracting party is deemed a title trustee, it is deemed a three-party registered title trust. Thus, if a title truster is acknowledged to have entered into a contract with the intent to directly bring about the legal effect of the contract to the title truster rather than a title trustee, the title truster shall be deemed a contracting party. Thus, the title trust relationship in this case shall be deemed a three-party registered title trust (see Supreme Court Decision 2010Da52799, Oct. 28, 2010).

2) According to the judgment of remanding the instant case, where the ownership transfer registration has been made under the real estate title trust agreement, the criteria for determining the time of transfer of real estate are as follows.

According to the main sentence of Article 88 (1) of the former Income Tax Act, "transfer" is defined as "the actual transfer of assets is made for price due to sale, etc. regardless of the registration or enrollment of assets," and in calculating gains on transfer of assets pursuant to Article 98 of the same Act, the time of acquisition and time of transfer shall be determined by Presidential Decree. Article 162 (1) of the former Enforcement Decree of the Income Tax Act, which is delegated by the former Enforcement Decree, provides that "the time of acquisition and time of transfer under Article 98 of the former Enforcement Decree of the Income Tax Act shall be the date of liquidation of the price of the assets except for the following cases."

In addition to the language and structure of the relevant provisions, comprehensively considering the legislative purport of Article 162(1)2 of the former Enforcement Decree of the Income Tax Act, the nature and validity of the registration made in the name of the title trustee under the three-party registered title trust agreement, it is reasonable to deem that the registration of transfer of ownership completed in the name of the title trustee under the three-party registered title trust agreement does not constitute the registration of transfer of ownership under the above provision. Therefore, if the seller completes the registration of transfer of ownership under the name of the title trustee under the three-party registered title trust agreement while transferring real estate, and then the buyer and the title truster who is the buyer are liquidated the price, the time of transfer of the relevant

B. Determination

In other words, the circumstances found by the above recognition: (a) CCC entered into a title trust agreement between BB and B, (b) between BB and the Plaintiff, the Plaintiff sold the instant real estate to BB, and agreed to transfer ownership, and (c) in the process of implementing the instant sales contract, the Plaintiff completed the instant transfer registration in the name of CCC, not BB, but CCC, and (c) BB et al. completed the payment of the purchase price and the assumption of obligation against the Plaintiff; (b) between B and CCC; and (c) between B and B; and (c) between B and B, a title trust agreement between B and B et al., with the real estate ownership in the name of CCC; and (c) between BB and B, the Plaintiff agreed to vest in the legal effect of the instant sales contract with CCC designated by BB rather than CCC.

According to the above facts, the plaintiff agreed with BB and CCC to complete the registration of transfer of this case on the ground of the three-party registered title trust agreement, and the registration of transfer of this case was completed in accordance with the above agreement. Thus, the registration of transfer of this case does not constitute the registration of transfer of ownership under Article 162 (1) 2 of the former Enforcement Decree of the Income Tax Act.

As seen earlier, BB paid part of the purchase price in cash as stipulated in the instant sales contract, and the duty to assume the exempted obligation to assume the obligation in lieu of the payment of the purchase price was fully performed by cancelling the collateral on the instant real estate on January 20, 2006. As such, the period of liquidation of the purchase price of the instant real estate is January 20, 2006. Thus, the year when the Plaintiff acquired the instant real estate by transfer is not the year of 2005 but the year when the transfer income accrued from the transfer of the instant real estate is not the year of 200

Since the Defendant recognized that the instant real estate transfer income tax was reverted to the Plaintiff in 2005 and imposed the transfer income tax for the year 2005 on the Plaintiff, the instant disposition was erroneous in imposing the transfer income tax on the income not reverted to the Plaintiff.

5. The part concerning the plaintiff's assertion of the above 2-B, C and D

As seen earlier, the Plaintiff’s claim as indicated in the above 2-A of the above 2-B should be accepted in entirety, regardless of whether the Plaintiff’s claim as to the above 2-B, C, and D is well-grounded. Therefore, the Plaintiff’s claim as to the above 2-B, C, and D cannot be determined additionally.

6. Conclusion

The plaintiff's claim of this case shall be accepted on the grounds of its reasoning. The judgment of the court of first instance shall conclude this conclusion.

Since it is improper to accept the Plaintiff’s appeal and cancel its entirety, the disposition of this case is subject to the disposition of this case.

The part on which the plaintiff seeks revocation shall be revoked shall be decided as per the Disposition.