Seoul Administrative Court-2017-Gu Partnership-73990 (2018.07)

Cho Jae-2016-west-3715 (2017.08)

In light of the registration period and registration indication, the title trust land under the Act on Special Measures shall not be deemed to be the land

It is insufficient to recognize that the registration of ownership preservation was made after the expiration of the registration period of the Act on Special Measures and that it is a registration under the Act on Special Measures because it is not indicated that it is a registered land under a title trust. The service taking into account the implementation of a housing development project cannot be deemed as a necessary expense

2018Nu54158 Revocation of Disposition of Imposing global income tax, etc.

EO

○ Head of tax office

Seoul Administrative Court-2017-Gu Partnership-73990 (2018.07)

May 16, 2019

May 30, 2019

1. The plaintiff's appeal is dismissed.

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

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

The judgment of the first instance shall be revoked. The global income tax for the year 2013 owed to the Plaintiff on August 5, 2016 by the Defendant.

Each disposition of imposition of KRW 00,000,000 (including additional taxes) and each disposition of KRW 000,000,000 (including additional taxes) of capital gains tax for the year 2013 shall be revoked.

1. Details of the disposition;

가. 원고는 2011. 11. 10. 그 소유이던 □□시 □□동 산00 임야 00,000㎡(이하 '이 사건 토지'라고 한다)를 주식회사 ■■개발(이하 '■■개발'이라 한다)에 매매대금 00억 원에 매도하는 계약을 체결하였다(이하 '1차 매매계약'이라 한다).

나. 원고는 1차 매매계약에 따라 2011. 11. 10.부터 2012. 1. 30.까지의 기간 중에■■개발로부터 계약금 합계 0억 원을 지급받았으나, 이후 중도금 지급기일인 2012.4. 8. 및 잔금 지급기일인 2012. 7. 17.까지 나머지 매매대금을 지급받지 못하여 그무렵 1차 매매계약을 해제하였다.

다. 원고는 2013. 1. 23. 매매대금을 00억 원(= 계약금 0억 원 + 잔금 00억 원)으로 하여 ■■개발과 다시 매매계약을 체결하였는데(이하 '2차 매매계약'이라 한다),2차 매매계약서 제2조 제2호는 '2차 매매계약의 계약금 중 0억 원은 기계약에 따라지급된 기계약금 0억원으로 지급에 갈음하고, 매수인은 위 기계약금에 대하여 권리를 주장하지 아니하고 이에 대하여 반환청구 등을 할 수 없다'고 정하고 있다. 원고는 2차 매매계약에 관하여도 ■■개발로부터 2013. 1. 31.부터 2013. 5. 24.까지 의 기간 중에 합계 000,000,000원을 추가 계약금의 일부로 지급받았을 뿐, 계약금의 최종 지급기일인 2013. 4. 30. 및 잔금지급기일인 2013. 6. 30.까지 나머지 매매대금 을 지급 받지 못하자, 그 무렵 2차 매매계약을 해제하였다.

D. On the other hand, on October 21, 2013, the Plaintiff entered into a contract to sell the instant land to bB for KRW 00,000,000 for price (hereinafter “third sale contract”), and completed the registration of ownership transfer to bB on November 28, 2013.

E. From March 2, 2016 to April 25, 2016, the Defendant conducted a tax investigation with respect to the Plaintiff. From March 2, 2016 to April 25, 2016, the Plaintiff additionally imposed a total of KRW 000,000,000 (including additional taxes) in total amount received by the Plaintiff according to the first and second sales contracts, + KRW 000,000 for the second down payment + KRW 000,000 for the second down payment; hereinafter referred to as “instant penalty”) on August 5, 2016, deeming that the penalty was ultimately reverted to the Plaintiff (hereinafter referred to as “instant global income tax disposition”).

F. On the other hand, on January 31, 2014, the Plaintiff reported KRW 00,000,000,000, which was paid by the Plaintiff to the Defendant on November 29, 2013, as the land development consulting service cost, to the Defendant Company Aa (hereinafter “A”), as the necessary expense for the transfer of the instant land under the third trade contract, was included in the necessary expense for the transfer of the instant land. However, on August 5, 2016, the Defendant reported the increase of KRW 12169 of the former Income Tax Act (amended by Act No. 12169, Jan. 1, 2014); however, the Plaintiff should include the increase of KRW 00,000,000,000,000,000,000,0000,000 per report ex officio, including the increase of KRW 100,000,000,00 for the transfer income tax (hereinafter “the acquisition tax”).

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Claim regarding the instant global income tax disposition

The penalty of this case received by the Plaintiff pursuant to the first and second sales contract shall be KRW 00 million out of the penalty of this case

The reason why KRW 00 million was paid to BB, etc. is that the instant land was jointly inherited by the Plaintiff and the Plaintiff, a type of property different from that of the Plaintiff, but the Plaintiff acquired the instant land under title trust with BB, etc. Therefore, the portion paid to BB, etc. ought to be deemed to have been reverted to BB, etc., the title truster, and the Plaintiff cannot be deemed to have accrued. Nevertheless, the instant global income tax disposition was unlawful on the premise that the instant penalty was reverted to the Plaintiff.

2) Claims regarding the disposition of the transfer income tax of this case

The Plaintiff’s appraisal of the instant land to cc, etc. in relation to the first sale contract.

00 million won for consulting services, such as mine, evaluation consultation, evaluation of business conditions, and analysis of business feasibility;

for the extension of the contract, the same service performance has been completed in respect of the second and third sales contract.

요하였다. 특히 두 차례의 계약해제 등으로 인한 법적 분쟁의 해결이 절실하였고, 이 사건 토지가 원고, bbb, ■■개발으로 순차 양도될 예정에 있었으므로 복잡한 권리 의무 관계를 해소하고 이 사건 토지의 사업성을 정확히 평가하기 위해서는 반드시 컨설팅 전문가의 도움이 필요하였다. 따라서 원고가 aaa에 지급한 비용은 이 사건 토지의 양도를 위해 필수불가결한 것이었고, 이는 구 소득세법 제97조 제1항 제3호, 같은 법 시행령 제163조 제5항 제1호 다목에 따라 '양도비'로서의 필요경비에 해당한다. 따라서 필요경비를 000,000,000원(= 이미 인정된 0억 원 + aaa 지급금액 000,000,000원)으로 하여 산출한 양도소득세 000,000,000원이 정당한 세액이므로, 이 사건 양도소득세 처분 중 이를 초과하는 부분은 취소되어야 한다.

(b) Fact of recognition;

1) 원고는 ■■개발로부터 1, 2차 매매계약에 따라 원고가 지급받은 계약금 합계

Of 00,000,000 won, part of which was 00,000, was paid to persons designated by bb, d or bb as follows:

Table Omission of the Table

2) bbb과 ■■개발, fff지역주택조합 추진위원장은 2013. 10. 21. 원고에게, 다음과 같은 내용의 확인서(갑 제3호증, 이하 '이 사건 확인서'라고 한다)를 작성하여 교부하였다.

Table Omission of the Table

(3) On May 15, 2012, the Plaintiff requested consulting services, such as civil engineering, design, district unit planning, legal advice and litigation, boundary and measurement with respect to the instant land, etc. On May 15, 2012, the Plaintiff paid the consulting cost of KRW 1.0 billion on February 1, 2013, and KRW 00 billion on May 29, 2013. The Defendant issued the instant transfer income tax disposition, and recognized the said amount as necessary expenses for the transfer of the instant land. On April 2, 2013, the Plaintiff entered into a real estate consulting contract with KRW 00,000,000 as the executor, and the Plaintiff paid the consulting service cost of KRW 2,00,000 on November 29, 2013 to the effect that the agreement was concluded for the purpose of efficiently managing the instant real estate transaction (hereinafter referred to as “the instant consulting service contract”).

4) BB made a statement on March 11, 2016 at the time of the tax investigation with the following contents:

○ 본인은 이 사건 토지를 양수하기 전에 ■■개발 등으로부터 00억 원을 수차례에 걸쳐 송금받은 사실이 있다. 이는 위 땅의 명의가 형님(원고) 개인명의로 되어있으나 이는 아버지가 남기신 것으로 형제들에게 공동으로 권리가 있다고 생각한다. 자기가 종손이고 명의자란 이유로 땅을 팔아 개인적으로 사용하였는데 그 땅은 형님 개인 것이 아니고 다른 형제인 ddd씨와 본인에게도 권리가 있다고 생각하여서 매매를 공동으로 진행 하였다. 원고도 이에 동의하고 ■■개발로부터 돈을 지급받은 것이다.

5) At the time of the tax investigation on March 17, 2016, DD stated the following contents:

○ 부친 사망시 집안어른들이 맏아들에게 토지를 물려주고자 형제들에게 상속포기서를 작성하라고 요구하여 형제들은 그 땅을 매도하지 않는 조건으로 상속포기하여 원고 명의로 해주었으나, 원고가 땅을 팔아 혼자 사용하여 형제들과의 약속을 어겼으므로, 자신과 형제들은 가난하게 살고 있는 상황에서 매수자가 나선 쟁점토지를 팔아 일부 라도 돈을 받고자 하였으며, 원고도 쟁점토지 양도 전에 형제들에게 구두로 약속하기를 양도대금의 반은 원고 몫으로 하고, 반은 나머지 형제들이 나누어 쓰라고 하여 본인 및 아들, 며느리 통장으로 받았다.

6) On April 10, 2016, the Plaintiff was subject to a tax investigation conducted on April 10, 201, and was the public official in charge, “the Plaintiff himself.”

10.외 00은행 계좌로 송금받은 000,000,000원은 본인 소유 이 사건 토지 외 1필지(임야)를 ■■개발과 매매계약을 진행하던 중 ■■개발이 지급약속불이행 등의 사유로 매매계약 해지하여 받은 위약금임을 확인합니다'라는 확인서를 작성해 주었다.

[Ground of recognition] Facts without dispute, Gap's statements, Gap's 1 through 4, 6, 9 through 11, 14, Eul's 3 through 10 (including each number), the purport of the whole pleadings

C. Determination

1) Determination on the instant global income tax disposition

A) If a title truster transfers real estate to a third party at his/her own will 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, the person liable to pay the income tax does not become the person liable to pay the income tax (see, e.g., Supreme Court Decisions 96Nu6387, Oct. 10, 1997; 2012Du10710, Sept. 4, 2014): Provided, that the burden of proving that a title truster, the subject of the transfer, is a person who actually obtains income from the transfer of real estate, as the transfer of real estate was based on a title trust, is the person who asserts such fact (see, e.g., Supreme Court Decision 84Nu505, Dec. 11, 1984).

B) In addition to the above facts of recognition, considering the following circumstances revealed by comprehensively considering the purport of Gap evidence No. 21 and the entire arguments, it is insufficient to recognize that the plaintiff was under title trust with B, etc., and there is no other evidence to acknowledge otherwise. Accordingly, the plaintiff's above assertion is without merit.

① In the process of tax investigation, tax trial, and the first instance court, the Plaintiff asserted to the effect that the Plaintiff received penalty of this case on the premise that the land in this case was owned by himself, but actually returned the penalty of this case in full. However, the Plaintiff lost in the first instance trial and the first instance trial.

The above previous argument is withdrawn, and the land of this case is owned by its own own.

Nman’s assertion that the Plaintiff was jointly owned by another type of a different type of property, and that the title trust was received.

section 2.3.4

② At the time of the tax investigation, the Plaintiff prepared a written confirmation that “the penalty of this case is the penalty received upon the termination of the sales contract for the land owned by the principal,” and recognized that the land of this case is its own ownership.

③ ddd는 세무조사 당시 이 사건 토지가 원고 단독 명의로 등기가 된 경위에 대하여, "부친 사망 시 집안어른들이 맏아들에게 토지를 물려주고자 형제들에게 상속 포기서를 작성하라고 요구하여 형제들은 그 땅을 매도하지 않는 조건으로 상속포기하여 원고 명의로 해주었다."라고 진술하였는바, 원고의 주장에 정면으로 배치된다.

④ bB made a statement consistent with the Plaintiff’s assertion that “The land of this case was transferred to the Plaintiff’s sole name under the Act on Special Measures for the Ownership of Forest Land” was registered as a witness at the trial court. However, according to Article 11 of the former Act on Special Measures for the Registration of Transfer of Forest Land Ownership (amended by Act No. 9143, Dec. 19, 2008), the acquisitor who failed to make a registration of forest land to be registered under this Act shall be registered within two years and six months from the enforcement date of this Act (amended by Act No. 9143, Jun. 18, 1970). In view of the above, it is difficult to believe that registration was made under the Act on Special Measures for the Ownership of Forest Land under the Plaintiff’s name after the expiration of the above period.

⑤ Reviewing the contents of each letter submitted by BB as evidence, the date of preparation of each letter is no later than November 8, 201, which was immediately before the date of the execution of the instant first contract (on November 10, 201), and its content is not related to title trust, but rather to the agreement on distributing the proceeds of the instant land to Ddd, Bb, etc., which is the form of a title trust.

6. It is recognized that BB made a statement consistent with the Plaintiff’s argument that “the name of the instant land was the Plaintiff’s personal name at the time of the tax investigation, but his father seems to have a joint right to siblings as he left.” However, in full view of DD’s statement that “The Plaintiff, who was given a renunciation of inheritance on the condition that the Plaintiff would not sell the instant land, would have any economic situation as the Plaintiff would have agreed to receive a part of the purchase price,” the above statement of BB is not a assertion of title trust, but a assertion that the Plaintiff should divide the purchase price of the instant land in proportion to the siblings which is difficult economic circumstances, given that BB’s statement was not a assertion of title trust, but the Plaintiff’s refusal of inheritance and the promise that the Plaintiff would not sell the instant land.

2) Determination on the disposition of transfer income tax of this case

A) The former Income Tax Act (amended by Act No. 12169, Jan. 1, 2014; hereinafter the same)

97(1) In calculating gains on transfer of a resident, the necessary expenses to be deducted from the transfer value shall be as follows:

Sub-paragraph (3) of this section provides that "transfer expenses, etc." shall be prescribed by Presidential Decree.

Article 163(5)1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23588, Feb. 21, 2014; hereinafter the same) provides that "the expenses directly paid for the transfer of assets include securities transaction tax (a) and return cost of capital gains tax base, return cost of capital gains tax base and contract preparation cost (b) cost, notarial cost, stamp, and referral cost.

In a lawsuit seeking revocation of a disposition imposing income tax, the burden of proof on the tax base, which is the basis of taxation, is on the tax authority, and the tax base is deducted from necessary expenses, so the tax authority should bear the burden of proof on income and necessary expenses in principle. However, since most of the facts that generated necessary expenses are in the sphere under the control of the taxpayer, and it is difficult for the tax authority to prove. Thus, if it is reasonable to prove the taxpayer by taking into account the difficulty of proof or equity between the parties, it accords with the concept of fairness (see Supreme Court Decision 2006Du16137, Oct. 26, 2007).

B) The above facts of recognition, Eul's entries in No. 14 (including paper numbers), and the purport of the whole pleadings

Comprehensively considering the following circumstances known in light of the aforementioned legal principles, Gap evidence 5-2

6, 14, 16, and 17 Evidence (including each number) are written only in the service contract of this case by the Plaintiff.

the expenses paid under Aa does not constitute necessary expenses. The part of this part of this part by the Plaintiff

There is no reason for the funeral.

① On April 2, 2013, the Plaintiff entered into the instant service agreement with an executora and consulting service cost of KRW 000,000 with respect to the instant land, and on November 29, 2013, paid KRW 000,000 according to the service cost under the said agreement. However, it is difficult to recognize that Aa actually performed its duties under the instant service agreement on the sole basis of the details of the expenditure submitted by Aa or the statement in the name of Ccc, and it is difficult to recognize that A actually performed its duties under the instant service agreement, and that there was no evidence to acknowledge otherwise.

② Even if Aa, as alleged by the Plaintiff, is deemed to have performed the work under the instant service contract, a request for appraisal of the subject matter, which is the scope of the work specified in Article 3 of the instant service contract.

and evaluation consultation, sales terms and contract coordination, advice on optimal project terms and conditions, project feasibility analysis;

In light of the fact that the progress report, finance, and legal advice, etc. appears to be the content of the housing development project to be implemented in the instant land rather than the services necessary for the transfer of the instant land itself, and that the instant confirmation document provides that bB shall pay the Plaintiff the real estate consulting service cost of 00 million won paid in advance by the Plaintiff, it is difficult to view the instant service contract cost as the expenses directly needed to obtain the transfer income realized by the transfer of the instant land.

③ 이 사건 용역계약 체결 당시는 원고가 이 사건 토지에 관하여 ■■개발과 1차 매매계약을 체결하였다가 해제하고 2차 매매계약을 체결하여 계약금 일부를 지급받

Considering that the Plaintiff was a situation, with a view to actively searching for another contracting party.

It seems that the service contract of this case was concluded and paid KRW 00,000,000 under the pretext of introduction expenses.

bb, the plaintiff's dynamics after the conclusion of the instant service contract by the third party

In light of the fact that it was concluded between the parties, the introduction fee that Aaa performs for concluding a third sales contract.

Therefore, it is difficult to view that the instant service cost was paid.

④ The Plaintiff asserts that the Defendant did not include only the instant service cost in the necessary expense, even though there is no intrinsic difference between the service cost and the instant service cost. However, according to the Plaintiff’s assertion, since there is no big difference in the work performed by ccc, etc., the service cost that the Defendant paid to cc, etc. is likely to not constitute necessary expenses. Thus, the Defendant’s measure that included the service cost that the Defendant paid to cc, etc. in the necessary expense can be problematic, and it cannot be said that the measure that did not include the instant service cost in the necessary expense is unlawful.

3. Conclusion

Since the judgment of the first instance is justifiable, the plaintiff's appeal is dismissed as it is groundless.