Suwon District Court 2010Guhap9526 ( November 29, 2010)

early 2010 Heavy0417 (20 April 20, 2010)

It is difficult to recognize as transfer of ownership due to cancellation of title trust.

Although claiming that the transfer of ownership due to the termination of title trust is not a transfer of ownership due to the termination of title trust, the fact of title trust cannot be acknowledged only by the deed signed by the private person submitted, and even according to the Plaintiff’s assertion, the real name registration was not made within the grace period under the Real Name

2010Nu45837 Revocation of Disposition of Imposing capital gains tax

Republic of Korea

O Head of tax office

Suwon District Court Decision 2010Guhap9526 Decided November 29, 2010

June 29, 2011

August 31, 2011

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. The Defendant’s imposition of capital gains tax of KRW 42,351,970 against the Plaintiff on April 13, 2009 shall be revoked.

1. Details of disposition;

The reasons why this Court shall be used for this part of the judgment of the court of first instance are the corresponding part of the reasons for the judgment (from the second third to the second second below). The reasons shall be cited in accordance with Article 8(2) of the Administrative Litigation Act, Article 420 of the Civil Procedure Act.

2. Whether the disposition is legitimate.

A. The plaintiff's assertion

1) The primary argument

Of the instant real estate, the Plaintiff’s share was inherited by Korea-A. Korea-A was agreed to jointly purchase the said real estate with the DoB, the headCC, and newD. However, Korea-A agreed to jointly purchase the said real estate, but the E changed to make an investment instead of the headCC, concluded a title trust agreement with the Korea-A on behalf of the headCC-based E, and made the registration of ownership transfer in the name of Korea-A. Since the instant transfer with the UE was based on the termination of title trust, it was unlawful for the Defendant to deem the instant transfer to be illegal.

2) Preliminary assertion

On August 8, 1989, KoreaA, the FF on behalf of the EE, and the SEB jointly purchased the shares of 445.87/1.023 of the instant real estate, and the title was agreed to be the name of Han and ParkG. The seller Kim H and KimK, who knew of the above title trust agreement, made a transfer registration in the name of Han and ParkG, and according to Articles 12, 11, 4(2) and 4(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), Korea, U.S. agent, FF, SEB and ParkGGB, a title trustee, is valid. However, since the title trustee, who was a title trustee, did not take any measure under Article 11 of the Real Estate Return Act, the Plaintiff did not transfer the shares of the instant real estate to the heir, who was subject to a grace period for the transfer of the shares under the title trust agreement.

B. Determination

1) Judgment on the main argument

According to Articles 11(1) and 12(4) of the Real Estate Explanation Act, a truster under the name of a title trustee who had any real right to real estate registered under the title trust agreement prior to the enforcement of the same Act shall make the actual name registration, etc. within the grace period prescribed in Article 11 of the same Act. Since the title truster becomes null and void due to the title trust agreement and the change in the real right to real estate by the registration made pursuant thereto after the expiration of the grace period, the title truster may not file a claim for the registration of transfer of ownership based on the termination of the title trust (see, e.g., Supreme Court Decision 98Da1027, Jan. 26, 1999). Even with the Plaintiff’s assertion, since the title truster had been prior to the enforcement of the Real Estate Real Name Registry Act and did not carry out the real name registration within the grace period prescribed in the same Act, transfer of the instant shares to EE is not due to the termination of the title trust. In addition, as seen thereafter, the Plaintiff’s primary assertion that the instant shares were not reasonable.

2) Determination on the conjunctive assertion

A) According to Article 4(1) and (2) of the Real Estate Explanation Act, where a title trustee entered into a contract title trust agreement with the owner who was a party to a contract and was unaware of the fact that the title trustee was a title trust agreement, and the title trustee entered into a contract for the sale of real estate and completed the registration of ownership transfer under the title trust agreement with the title trustee, the title trustee shall acquire full ownership of the relevant real estate, notwithstanding the invalidity of the title trust agreement with the title trustee, and the title trustee shall be obliged to return unjust enrichment to the title truster. Where the title trustee acquired the title of real estate under the title trust agreement before the enforcement of the Real Estate Explanation Act, the title truster may terminate the title trust agreement and have acquired the ownership of the relevant real estate at any time until the grace period under Article 11 of the said Act expires after the enforcement of the said Act, and the title trustee becomes null and void under Articles 12(1) and 4 of the said Act, and eventually the title trustee shall be entitled to full ownership of the relevant real estate, and the title trustee shall be entitled to return the relevant real estate to the title trustee.

The title truster could terminate the title trust and acquire ownership before the lapse of the grace period, but the title trustee acquired ownership due to the invalidation of the grace period, thereby making unjust enrichment. Accordingly, the transfer of ownership to the title truster by unjust enrichment is not a substantial transfer, and thus, is not a transfer subject to capital gains tax, since the title trustee did not have the substance of transferring ownership due to unjust enrichment.

B) Therefore, we examine whether the instant share registration was made through title trust, and whether the instant transfer returned unjust enrichment.

According to Gap evidence Nos. 3 and 5, the following facts are recognized:

① As to the instant real estate, Kim H owned 330.58/1023 shares, and Kim HK owned 165.29/1023 shares. On May 24, 1989, the entire shares of Kim H were transferred to ParkG, and the entire shares of Kim H were transferred to Korea.

② As for the notarial deed signed by a private person (a joint law firm authentication by a notary public on August 8, 1989) made between the FF, SB, and Korea-AA, “The 30.58/1023 (100 square) and 115.29/1023 (50 square) out of the real estate of this case” stated that the FF purchased 2/4 equity and 1/4 equity, respectively, and Korea-B and Korea-A purchase 1/4 equity, and Korea-B and Korea-A expressed that each share is a title truster (a title trustee).

③ On June 20, 1996, SeoB completed the provisional disposition registration for the prohibition of disposal with respect to the shares of HanA among the instant real property.

In full view of the above facts and the following circumstances, Gap evidence 2-1 and 2-2, each of the statements, the witnessF of the first instance trial, and the E testimony, which correspond to the purport of title trust of the shares of this case, to Han on behalf of the FF PE, are not trusted, and there is no other evidence to acknowledge it.

④ Even according to the UE certificate, the content of which is the title truster, the time when the UE participates in the joint investment is May 1, 1985. In fact, the time when the shares of Kim HH and Kim KK in the instant real estate were transferred to ParkG and HanK in the future is on May 24, 1989, and the name of the EE is not stated in the deed signed by a private person prepared on August 8, 1989, which was later.

⑤ Since the shares of HanA are 330.58/1,023, if the EE takes over 2/4 of the FF shares stated in the Certificate, the Plaintiff should transfer the shares to the EE. 165.29/1,023, while in fact the Plaintiff has transferred only the shares of 110.734/1,023.

④ The Plaintiff filed a preliminary return of capital gains tax and filed a return and paid KRW 9,344,090 by asserting that the transfer of ownership was based on the return of unjust enrichment following the invalidity of the title trust agreement.

7. EE was aware on October 5, 2010 that there was a notarial deed signed by a private person, and there is no trace that E has exercised its right as a right holder with respect to the real estate of this case until the 20th anniversary of the joint investment in 1985 and the registration date in 1989.

8) In the first instance trial, the head of the FF testified that four members of the SB, KoreaAA, E, and FF will make joint investments, and 2/4 of the FF equity equity stated in the deed signed by a private person is a combination of the EF equity (37.5 when assumed that the AF equity will be 100). This is inconsistent with the original Plaintiff’s statement that the EF will make an investment in place of the FF.

C) The Plaintiff’s conjunctive assertion that the instant transfer was caused by a return of unjust enrichment due to the invalidity of the title trust agreement, on the premise that the title trust agreement exists between Han and EE is without merit.

3. Conclusion

The instant disposition is lawful. The Plaintiff’s appeal is dismissed.