Seoul Administrative Court 2009Gudan266 (209.06.09)

Whether a house can be seen as a title trust

It is recognized that the trustr has held the title trust of the house in view of the fact that the trust has paid the aggregate land tax and the property tax and the transfer income tax and the additional dues.

The contents of the decision shall be the same as attached.

1.The decision of the first instance shall be revoked.

2. The imposition of KRW 27,332,860 on January 5, 2008 by the Defendant against the Plaintiff on January 5, 2008 is revoked.

3. The total costs of the litigation shall be borne by the defendant.

The same shall apply to the order.

1. Circumstances of dispositions;

A. On October 2, 2006, the Plaintiff: (a) received the successful bid on February 26, 1997, and completed the registration of ownership transfer on May 13, 199; and (b) ○○○○○○○○○○○ Dong 395-11 Ground 302 (hereinafter the instant housing; hereinafter the same) with respect to the sale on August 2, 2006 to Nonparty Aaple on the ground of August 2, 2006; (c) however, on December 28, 2006, the Plaintiff submitted a preliminary return on capital gains tax to the effect that the instant housing was acquired and transferred by KimB, the Plaintiff’s mother, under the name of the Plaintiff, and constitutes a non-taxable one house for one household under a title trust.

B. On January 5, 2008, the Defendant did not have any evidence to acknowledge the assertion that GimB acquired and transferred the instant house under the name of the Plaintiff, which is an infant, and further, since title trust is null and void in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name, it is reasonable to deem that the instant house was acquired and transferred by the Plaintiff. However, at the time of the transfer of the instant house, the Plaintiff owned 401, Do-dong, Do-dong, Do-dong, ○○○○○, Do-dong, Do-dong, Do-dong, Do-dong, Do-dong, Do-dong, and thus is not subject to non-taxation of one house for one household.” The first preliminary return of non-taxation was excluded from the actual transaction price, calculated transfer margin, and decided and notified KRW 27.32.860,32.

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

2. Whether the instant disposition is lawful

(a) Facts of recognition;

(1) On November 15, 1994, KimB, the Plaintiff’s mother, established a right to lease on a deposit basis with a person having chonsegwon KimB, 55 million won on a deposit basis, and resided around that time. Upon the auction, the instant housing participated in the bidding in the Plaintiff’s name. On February 26, 1997, the instant housing was awarded a successful bid of KRW 73.2 million on a deposit basis.

(2) On the other hand, KRW 39,957,504 out of the bid price of KRW 73,200,000 was appropriated for dividends to KimB (a person having a right to lease, consented that KimB shall offset his dividends to the bid price). The Plaintiff borrowed KRW 25,00,000 from the new bank, and paid part of the bid price. On May 28, 1997, the right to collateral security was established in the name of the maximum debt amount of the new bank in the name of the new bank on the instant house.

(3) Of loans to the above new bank, KRW 5 million on May 29, 1998, KRW 5 million on May 29, 1999, KRW 5 million on May 29, 200, KRW 5 million on May 29, 2000, and KRW 10.2 million on February 6, 2001, KimB and Han-CC (hereinafter referred to as the Plaintiff’s dynamics and KimB’s son’s son’s son’s son’s son’s son’s son’s son’s her son’s her son’s her son’s her son’s her her b.2 million + KRW 2.2 million) were repaid.

(D) While KimB continued to reside in the instant house, on February 27, 2001, leased the instant house with the lease deposit of KRW 80 million, and around that time, the Plaintiff transferred KRW 69 million to the Plaintiff while the Plaintiff was a director of the instant loan owned by the Plaintiff. The Plaintiff repaid KRW 69 million to the Plaintiff the agricultural loan of the instant loan of KRW 74 million.

(5) 원고는 2001. 9. 20. 윤DD에게 이 사건 빌라를 임차보증금 8,000만 원에 임차하고 위 임차보증금 중 6,900만 원을 김BB에게 송금하였다. 그 후 김BB는 2001. 9. 26. △△시 △△구 △△동 131-1 ★★트 A동 204호를 임차보증금 6,500만 원에 임차하고 그 무렵부터 거주하였다.

(6) 원고가 이 사건 주택을 AA윤에게 매도하면서 매수인인 AA윤이 임대차를 승계하기로 하였고 그에 따라 이 사건 주택의 매매대금 1억 9,800만 원 중 1억 원(최초 8,000만 원에서 2,000만 원이 증액되었다)이 공제되었는데, 나머지 9,800만 원 중 5,790만원(= 1차 계약금 990만원 + 2차 계약금 800만원 + 중도금 4,000만 원)은 원고를 거쳐 김BB에게 송금되어 김BB가 임차한 △△시 △△구 ♤♤동 1081 ♤♤마을 ■■크 102동 303호의 임차보증금 1억 500만 원의 일부로 사용되었고, 나머지 금원은 한CC의 결혼비용으로 대부분 사용되었다.

(7) During that period, KimB paid the aggregate land tax and property tax of the instant housing. The aggregate of KRW 27,322,860 and additional KRW 1,803,955 due to the instant disposition was paid in installments.

[Reasons for Recognition] Unsatisfy, Gap evidence No. 3, 8, 9, 10, 14, 15, 16, 17, 20, 21, 22, 23, 24, Gap evidence No. 5-1, 2, Gap evidence No. 11-2, Gap evidence No. 2, 2, 3, 4, 13-2, Gap evidence No. 25-1, 2, 3, and 29-1, Eul evidence No. 3-1, 2, and 3-1, 2, and 3-1, 3 of the evidence No. 3, and the purport of the whole pleadings

B. Determination

(1) As shown in the above facts, the right to lease on a deposit basis in the name of KimB was established on the instant house, KimB was residing in the instant house, and the dividends on KimB were appropriated for the entire successful bid price, the amount of loans from the new bank was repaid by KimB, and KimB remitted the amount of KRW 69 million out of the deposit for lease of the instant house to the Plaintiff, which was returned again to the Plaintiff KRW 74 million, but was returned to the Plaintiff. Considering the fact that KRW 57,90 million out of the purchase price of the instant house was remitted to KimB through the Plaintiff, and used as part of the deposit for lease of KimB, the remainder of the money was used as a marriage expense, and the transfer income tax and the property tax of this case were paid to the Plaintiff during the period of KimB, and the transfer income tax and the additional tax were paid to the Plaintiff.

(2) Therefore, at the time of selling the instant house to Aap on October 2, 2006, the Plaintiff did not own the instant house except for the instant loan, and KimB did not own the instant house otherwise. The KimB owned the instant house for three or more years from the time of winning the contract under the Plaintiff’s name on February 26, 1997, and resided in the instant house for two or more years. As such, it constitutes a non-taxation requirement for one house for one household under Article 89(1)3 of the Income Tax Act, Article 154(1) of the Enforcement Decree of the Income Tax Act, and Article 154(1) of the Income Tax Act.

3. Conclusion

Thus, the disposition of this case shall be revoked as it is unlawful. Since the judgment of the court of first instance differs from this conclusion, it is so decided as per Disposition by cancelling the judgment of the court of first instance and cancelling the disposition of this case.