Seoul Administrative Court 2015Gudan53254 ( August 20, 2015)

Since the person who registered the ownership of real estate is presumed to have acquired the ownership, the person who asserts the title trust bears the burden of proof.

The burden of proving the substance over form principle related to the transfer income tax on the real estate held in title trust exists to the taxpayer, and there is no evidence to acknowledge it, so it is insufficient to reverse the presumption alone.

2015Nu59084 Revocation of Disposition of Imposing capital gains tax

KimA

Head of the tax office;

Seoul Administrative Court Decision 2015Guhap53254 decided August 20, 2015

May 1, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. On July 1, 2014, the Defendant revoked the imposition of the capital gains tax of 00 won on the Plaintiff in the year 2009.

1. Quotation of judgment of the first instance;

The reasons why the court should explain this case are as follows. The plaintiff's "the plaintiff" of the first instance judgment No. 2, No. 18, and No. 20 shall be regarded as "B," and the plaintiff's assertion that the court emphasizes again in the trial is identical to the part of the reasons of the first instance judgment, except for addition of the judgment as set forth in paragraph (2) below, so the meaning of the summary used in this case is cited in accordance with Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act (hereinafter the meaning of the summary used in this case is the same as the

2. Additional determination

A. The plaintiff's assertion

The Plaintiff’s mother, headB, the instant real estate is the Plaintiff as his father, and No. 201 of the instant housing is the Plaintiff, and No. 301 of the instant housing is the title trust to YD, which is the mother of the Plaintiff, respectively. The instant housing was held in title trust to Y, which is the mother of the Plaintiff, with respect to title trust. As a result of the instant complaint filed by CC and SongB, the headB was sentenced to criminal punishment against the violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) in relation to title trust, and only the Plaintiff could not file a complaint with her mother. Accordingly, the instant disposition that imposed capital gains tax on the Plaintiff, the title trustee

B. Relevant statutes

【National Tax Basic Act

Article 14 (Real Taxation) (1) If the ownership of the income, profit, property, act or transaction subject to taxation is merely nominal, and there is another person to whom it actually belongs, tax-related Acts shall apply to such person to whom it actually belongs as a taxpayer.

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

(3) Where it is recognized that benefits provided for in this Act or other tax-related Acts are obtained unfairly by means of indirect means via a third party, or through two or more acts or transactions, this Act or other tax-related Acts shall apply, deeming that the relevant party has made a direct transaction or has engaged in a single act or transaction consecutively in accordance with the economic substance thereof.

C. Relevant legal principles

If a title truster transfers real estate to a third party and income from such transfer was attributed to a title truster, the person liable to pay the transfer income tax under the substance over form principle provided by Article 14(1) of the Framework Act on National Taxes and Article 7(1) of the former Income Tax Act (wholly amended by Act No. 4804, Dec. 22, 1994); however, Article 14(1) of the Framework Act on National Taxes clearly states the principle of substantial taxation (see Supreme Court Decision 96Nu6387, Oct. 10, 197). Article 14(1) of the Framework Act on National Taxes provides that a title truster, a title truster, or a title trustee, who is the subject of the transfer, shall not be liable to pay the transfer income tax (see Supreme Court Decision 84Nu505, Dec. 11, 1984; Supreme Court Decision 2008Nu8384, Apr. 28, 2008).

(d) Facts of recognition;

1) As to the instant real estate Nos. 201 and 301, and the instant real estate, the headB and the Plaintiff drafted a real estate sales contract as of September 8, 2008. Each real estate sales contract is limited to only the subject matter, and the terms and conditions of the contract, such as the purchase price and the time of payment, are as follows.

(Abnormal omission)

2. Details of the contract;

Article 1 In the agreement of both the seller and the buyer, the above real estate will be entered into as follows:

Article 2 In the sale of the above real estate, the buyer shall pay the purchase price as follows:

The purchase price of ○0 million won (○○○ Won)

(1) The sum paid in September 8, 2008, 000 million won at the limit of c.m.

Of the Do, gold ○0 million won paid on September 17, 2008

payment of gold ○0 million won, September 30, 2008, in gold Sheet,

Article 3 List of Real Estate shall be dated 2008.

(hereinafter omitted)

2) Around September 17, 2008, the headB completed the registration of ownership transfer on the ground of sale as of September 8, 2008 in the name of thisCC with respect to No. 201, the Plaintiff’s name with respect to the instant real estate, and in relation to No. 301 with respect to the instant housing, the registration number of ownership transfer is No. 57302, 57303, and 57304 with respect to each of the above registration numbers.

3) The auction procedure for the instant housing Nos. 201 and 301, and the instant real estate was initiated. The instant housing No. 201 was completed in the name of EE, and the instant real estate was completed in the name of EF, and the title transfer registration for the instant real estate was completed in the name of EF, and the title transfer registration for the instant real estate was completed in the name of EG on April 2, 2009, respectively.

4) On December 23, 2014, the Seoul Central District Court issued a summary order of a fine of KRW 00,000,000 in the Seoul Central District Court, which was sentenced to a fine of KRW 00,000 on December 23, 2014, and the above judgment became final and conclusive. Meanwhile, on December 22, 2014, the Jongno-gu Administrator imposed a penalty surcharge on the headB on the ground of the violation of the Real Estate Real Name Act, on the ground that the ownership under subparagraphs 201 and 301 was registered in the name of the trustee according to the title trust agreement.

5) The J, which is the cause of the affairs of the senior certified judicial scrivener Gangwon-H, in charge of the registration of the said real estate, prepared a written confirmation stating that "J shall not actually sell the instant real estate Nos. 201 and 301, and the instant real estate, but once it intends to transfer the name of Cho Jong-B and his/her father in the future, all the prices of each real estate were entered in the sales contract documents entered in the registry."

[Reasons for Recognition] Each entry of Gap evidence Nos. 7, 16 through 18, 21 (including each number), and the purport of the whole pleadings

E. Determination

1) As long as the registration of ownership transfer was completed in the name of the Plaintiff on the instant real estate, it is presumed that the Plaintiff has lawfully acquired the ownership of the instant real estate. Therefore, barring any special circumstance, liability to pay capital gains tax from the sale of the instant real estate shall be borne

2) 관련 법리에 비추어 위와 같은 추정을 번복할 수 있는지에 관하여 살피건대, 위 인정사실 및 변론 전체의 취지에 의하여 인정되는 다음과 같은 사정, 즉 ㉠ 장BB가 이 사건 주택 제201호, 제301호에 관하여 부동산실명법 위반으로 벌금형을 선고받고 그 판결이 확정된 이상, 이 사건 주택 제201호, 제301호는 각 이CC, 송DD에게 명의신탁되었음을 인정할 수 있는 점, ㉡ 이 사건 주택 제201호, 제301호뿐만 아니라 이 사건 부동산에 관하여도 같은 날 같은 내용으로 부동산 매매계약서가 작성된 점, ㉢ 위 부동산들에 관한 각 소유권이전등기의 등기접수번호가 일련번호이므로 위 각 소유권이전등기는 모두 같은 법무사에 의하여 일괄 신청된 것으로 보이는 점, ㉣ 법무사 사무원이 이 사건 부동산이 실제 매매된 것이 아니라는 취지의 확인서를 작성한 점 등을 종합하면, 이 사건 부동산이 원고에게 명의신탁된 것이 아닌가하는 의심이 들기는 한다.

3) However, in light of the following circumstances acknowledged by the above facts and the evidence as mentioned above, Gap evidence Nos. 7-2 and 12, and Eul evidence Nos. 5, the whole purport of the pleadings is added to each of the above facts and evidence, there is no evidence to prove otherwise that the circumstances mentioned in the above Paragraph 2 are insufficient to reverse the presumption that the plaintiff was the owner of the real estate of this case, and that the real estate of this case was

① In light of the fact that the Plaintiff and the headB are women relations, the possibility of transferring the instant real estate, unlike the instant housing No. 201 and No. 301, not the title trust to the Plaintiff, may not be ruled out.

② During the pre-trial procedure, the Plaintiff asserted that “BB transferred the instant housing out of the name of one person,” rather than in the name of one person, and argued that “B trusted the instant housing in title.” The Plaintiff argued that the instant housing was held in title by means of a provisional seizure in the future of Chapter BB through the instant complaint, and that it was difficult for BB to put the instant housing out of title due to the instant provisional seizure.” However, due to such vague circumstances, it is difficult to understand that BB made a title trust in the name of the Plaintiff by taking charge of expenses to avoid the risk of criminal punishment due to the violation of the Real Estate Real Name Act.

③ Even though the Plaintiff asserts that the headB was the title truster, the Plaintiff did not submit any specific data to acknowledge that the headB continued to exercise the real control and management right and the external disposal right over the instant real estate after September 17, 2008, when the ownership transfer registration was completed under the name of the Plaintiff with respect to the instant real estate.

④ According to the evidence Nos. 7-2 and 5 evidence Nos. 7-2 and 7-5, the address of the registration of transfer of ownership in the name of the Plaintiff, which was completed with respect to the real estate of this case, is indicated as the address of the real estate of this case. On October 29, 2008, the registration of transfer of ownership in the name of the Plaintiff was completed with respect to the registration of transfer of ownership in the name of the Plaintiff, which was completed with respect to the building of the land of this case located in Chungcheongnam-dong, Chungcheongnam-dong, Chungcheongnam-dong, Chungcheongnam-dong, Chungcheongnam-do, Gyeongcheon-do. The reason for registration was "before May 6, 2008," and the Plaintiff’s address was indicated as the address of the real estate of this case. In light of these facts, since the Plaintiff appears to have been transferred to the real estate of this case on or before September 8, 2008, it is highly likely that the Plaintiff exercised the right to de facto control and management of the real estate of this case.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.