District Court-2015-Gu Partnership-1028 (Law No. 19, 2016)

Cho Jae-2015-China2624 (Law No. 17, 2015)

Since the substance of transfer registration is by sale, disposition based on transfer is illegal.

Since the transfer registration of ownership is not by means of transfer, but by sale, the disposition of this case based on transfer is unlawful.

Article 88 (Definition of Transfer)

2016Nu609 Revocation of disposition of imposing capital gains tax

OO

O Head of tax office

Suwon District Court Decision 2015Guhap10228 Decided July 19, 2016

2017.04.21

2017.05.26

1. The defendant's appeal is dismissed.

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

1. Purport of claim

The defendant's disposition of imposition of OOO(including additional tax) of capital gains tax against the plaintiff shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of judgment of the first instance;

The reason for this decision is as follows, except for partial revision of the judgment of the court of first instance, and therefore, it is consistent with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

1) The 2nd to 3nd to 8th of the first instance judgment are as follows.

"OO, which was owned by the Plaintiff to OO.O.O.O.A., the Plaintiff had completed the registration of ownership transfer for the reason of sale on O.O.O.O.O.O.O.O.O., O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type O-type (each of the above land is 1997O.O.O., the administrative district and land category were changed and combined; hereinafter referred to as "the land in this case").

2) Beginning 3, 800,000,000 won of the first instance judgment, the phrase “assumed that the registration of ownership in this case is for the purpose of transfer security” should be added.

3) 3 pages 15 of the judgment of the first instance court, if the registration of ownership of this case was completed in the future AA due to sale and purchase, the conciliation amount of this case shall not be more than 10 years. It is more apparent that the disposition of this case was made after the expiration of the exclusion period for imposition of capital gains tax since the establishment date of the Plaintiff’s liability for payment of capital gains tax was advanced for more than 10 years. Accordingly, any copy of the disposition of this case is illegal or invalid (the Plaintiff added this argument to this Court).

4) The 3rd to 5th to 13th of the first instance judgment are as follows.

"A, Nos. 1, 2, 3, 3 and 4, each entry shall include the whole purport of the pleadings.

In light of the following circumstances, the evidence presented by the Defendant and the circumstances alleged by the Defendant alone are for securing claims against the Plaintiff by the Plaintiff, and thus, it is difficult to deem that the instant adjustment amount has the nature of liquidation money. Therefore, the instant disposition based on the premise that the instant adjustment amount constitutes liquidation money is illegal (i.e., the Plaintiff’s remaining arguments are not determined).

(1) There is no evidence to deem that the Plaintiff and AA, the owner of the instant land, prepared a written contract to establish a security for transfer concerning the instant land.

(2) AA from around 19O.O. to around 19O.O.O.O., at the Plaintiff’s request, lent at least KRW 00 to the Plaintiff at least by subrogationing the Plaintiff’s obligations to the Plaintiff and BB, or directly lending the Plaintiff’s business funds. O.O., upon the completion of the registration of the right to claim ownership transfer of the instant land, AA secured the right to claim a loan against the Plaintiff by completing the registration of the right to claim ownership transfer. Nevertheless, it is difficult for AAA to find out the reason for completing the registration of the instant ownership for the purpose of securing the right to claim ownership by paying considerable expenses, such as acquisition tax, registration tax, certified judicial scrivener fees, etc.

(3) The appraisal value of the instant land based on 19O.O.O.O.O., the ownership registration of the instant land is O.A. AA is 190.O., the ownership registration of the instant land; the Plaintiff’s loan O.O., the Plaintiff’s loan O.O., the 199O.O., the Plaintiff’s loan O., the Plaintiff’s payment to the O.O., on behalf of the O. bank (the result is cancellation of each right to collateral security on the instant land); and the amount paid by AA for the Plaintiff exceeds the above O.O., at least the aggregate amount. In light of the foregoing, the Plaintiff and AA had agreed between the Plaintiff and AA to additionally accept the Plaintiff’s loan O.O., substitute the total amount of the existing loan and the debt acquisition amount; and thereafter, the ownership registration of the instant land is more reasonable than that of the instant case due to the purchase and sale of O.O., taking additional expenses into account ownership registration.

(4) The CCC, which is operated by AA as its representative director, shall be the land of this case.

With respect to the 190O.O.O.O., 190.O.O.O., 190.O.O., 190.O.O., 190.O.O., 190.O.O., 190.O.O., and 190.O.O., that were loaned under the name of CCC. AA was the mortgagee of the instant land. If AA was not the mortgagee of the instant land, such AA was not able to provide the instant land as the security for the considerable debt, and the Plaintiff also could not find any circumstance to provide AA with its own property as the security.

(5) According to Article 45(1) of the former Enforcement Decree of the Income Tax Act (wholly amended by Presidential Decree No. 14467 of Dec. 31, 1994), a person who has created a transfer security right has expressed his/her intent to transfer the property to secure the repayment of the obligation between the parties; 2. there is a declaration of intent that the relevant debtor will use the property for its original purpose; 3. There is an agreement on the principal, interest rate, repayment period, repayment method, etc.; 3. There is an agreement on the principal, interest rate, repayment period, repayment method, etc.) and a copy of the contract, attached to the final return of tax base to the head of the competent tax office, shall not be deemed a transfer. However, as to the land of this case, the Plaintiff did not take such measures again after completing the registration of the ownership of this case in the AAA.

(6) According to Article 4(1) of the Provisional Registration Security Act, the liquidation amount of the real estate transferred for security is the amount obtained by deducting the amount of claims from the real estate value at the time of notification of the liquidation. However, the amount calculated by deducting the amount of loans granted by AA from the standard market value at the time of the instant adjustment of the land would considerably exceed the market price if the amount exceeds the OO members and is based on the market price. Nevertheless, it is difficult to readily conclude that the instant adjustment amount was the liquidation amount as the liquidation amount.

3. Conclusion

If so, the plaintiff's claim shall be accepted on the ground of its reasoning. The judgment of the court of first instance with the same conclusion

Since the defendant's appeal is justifiable, the defendant's appeal is dismissed.