Cho High Court Decision 2013 Deputy 2150 ( November 05, 2013)

The benefits acquired by the landowner by occupying and using the land without any legal cause by a third party shall not be subject to taxation.

The taxpayer of capital gains tax is a title truster, and the third party occupies and uses the land without any legal cause, and the benefits the owner obtains from the third party, etc. does not constitute the subject of income tax and value added tax.

Article 11 of the Value-Added Tax Act

Article 14 of the Framework Act on National Taxes

Jeju District Court 2014Guhap5044 Revocation of Disposition of Imposing global income tax, etc.

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개가지

November 26, 2014

December 17, 2014

1. The Defendant’s global income tax of 00,000,000, global income tax of 2006 for the year 2006, global income tax of 00,000,000, global income tax of 2007, global income tax of 00,000,000 global income tax of 209, global income tax of 200,000, global income tax of 2000,000, global income tax of 2000,000, global income tax of 2000,000, 200, 200,000, 200, 200, 200, 200, 2000, 200, 200, 2000, 200, 2007, 2000, 200, 2007, 2007, 2007.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 2/5 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

Cheong-gu Office

Paragraph 1 and the Defendant’s transfer income tax attributed to the Plaintiff on January 8, 2013 in 2011.

The imposition of KRW 00,000,000 shall be revoked.

1. Details of the disposition;

A. Kim Jong-young is the Plaintiff’s wife, Kim Jong-○’s husband’s wife.

나. 김□□은 2006. 3. 16. ○○○시 ○○동 ○○ 전 0,000㎡, 같은 동 ○◇ 대 000㎡ 및 같은 동 ○☆ 전 000㎡(이하 '이 사건 토지'라 한다)를 매각대금 000,000,000원에 경락받았다.

C. Meanwhile, on the ground of the instant land, Kim Dong-ri, Seoul Special Metropolitan City (hereinafter referred to as the “instant building”) newly constructed a building and completed the registration of ownership preservation on July 14, 2006, and Kim Young-ri, Seoul Special Metropolitan City (hereinafter referred to as the “Seoul Special Metropolitan City”) established a lawsuit against Kim Young-ri, Seoul Special Metropolitan City (hereinafter referred to as the “instant building”) to have occupied the instant land without permission for 28 months from March 16, 2006 to July 16, 2008 and filed a lawsuit claiming unjust enrichment equivalent to the rent during the said period, and the said judgment became final and conclusive as it is.

D. After that, △△ Development Co., Ltd. (hereinafter referred to as “Nonindicted company”) entered into a lease agreement (hereinafter referred to as “the instant lease agreement”) on the condition that the instant building was successful on December 15, 2009, and the instant building was constructed between Kim Jong-chul and Kim on December 25, 2010, on the condition that the instant building was purchased with respect to the instant land by the end of December 201, it paid KRW 00,000,000 as stipulated in the said lease agreement to Kim Jong-myeon around that time, on the condition that the instant building was purchased by the end of December 25, 201.

- - Sound

Article 2 The non-party company will use the instant land from December 25, 2010 to June 30, 201, and the monthly rent shall be KRW 00,000,000 and the amount for six months shall be paid in advance.

Article 6 The non-party company is to pay in advance the rent by receiving a written consent to the use of land on December 25, 2010 with the successful bid on December 15, 2009 and obtaining a written consent to the use of land on December 25, 2010. The rent prior to December 25, 2010 shall be paid in advance for six months, and the rent for land on December 25, 2010 (after the date of successful bid).

The rent shall be the full amount of KRW 00 billion, which is settled under mutual agreement.

E. On the other hand, Kim Il-young and the non-party company received a judgment against Kim Jong-ri from Kim Jong-ri on the same day.

After the period of order for payment of KRW 00,00,000 and the above decision, the non-party company agreed to pay KRW 00,000,000,000 in total, including the land use fee of this case in △△△△△,00,000,000, in lieu of △△△△, from the time when the non-party company ordered payment of the building in this case to the time of the successful bid of the building in this case,

F. On September 23, 201, Kim Young-chul sold the instant land to the non-party company in KRW 0,000,000,000, and received KRW 0,000,000 from the non-party company through its own account on the same day. Meanwhile, according to the instant agreement, the amount of KRW 00,000,000, which was to be paid from the non-party company, was deposited from the non-party company to the Plaintiff’s account on the same day.

G. After that, Kim Jong-tae reported the transfer income tax on the instant land on November 30, 2011

나, 피고는 2012. 10.경 원고 및 김□□에 대한 세무조사를 하여 '원고가 김□□의 명의를 차용하여 이 사건 토지를 취득・양도하면서, 양도소득세 및 2006년부터 2011년까지의 이 사건 토지에 대한 임대료 수입금액 ▲00,000,000원을 신고누락하였다'고 보아 김□□의 양도소득세에 관하여는 결정취소하고, 이 사건 토지의 양도소득 귀속자를 원고로 하여 양도소득세를 재산정한 다음 김□□ 명의로 납부된 양도소득세를 공제하여 원고에게 양도소득세 등 관련 제세를 부과하기로 하고, 2013. 1. 11. 원고에게 2011년 귀속 양도소득세 00,000,000원을, 이 사건 토지에 대한 임대료 수입금액 누락액 ▲00,000,000원에 대하여 다음 표와 같이 2006년 1기 과세기간부터 2011년 1기 과세기간까지의 부가가치세 합계 000,000,000원 및 2006년 귀속부터 2011년 귀속까지 종합소득세 합계 000,000,000원을 각 고지・결정하였다(이하 '이 사건 처분'이라 한다)

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 7, 10, 11, Eul evidence Nos. 2, 3, 6, and 7 (including paper numbers), the testimony by ○○○○ witness, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

원고가 이 사건 토지의 실제 소유자가 아님에도 피고는 일부 금원이 원고에게 귀속되었다는 사정만으로 원고가 김□□에게 이 사건 토지를 명의신탁하였다고 잘못 판단하여 양도소득세, 부가가치세, 종합소득세를 부과하였고, 나아가 임대료 수입금액 ▲00,000,000원 중 000,000,000원만이 임대소득이고, 나머지 000,000,000원은 불법점유에 의한 부당이득금의 성격으로 임대수입으로서 과세대상이 되지 않으므로, 이에 따른 부가가치세, 종합소득세 과세처분 역시 부당하다.

Therefore, the instant disposition should be revoked.

B. Determination as to the actual owner of the instant land

6. In light of the following circumstances, the Plaintiff’s name and KRW 10,00,000 were 0,000,000,000,000 were 0,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,0000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00,00,00,00.

C. Determination on capital gains tax

On the other hand, if a title truster transfers real estate to a third party and income from such transfer belongs to the title truster, under the principle of substantial taxation as stipulated in Article 14(1) of the Framework Act on National Taxes, if the title truster transfers the real estate to a third party, the taxpayer of the relevant transfer income tax is the title truster who is the subject of the transfer (see, e.g., Supreme Court Decision 96Nu6387, Oct. 10, 197). As seen earlier, the Plaintiff is the actual owner of the land of this case, and the income from such transfer was also attributed to the Plaintiff. Thus, the Defendant’s disposition imposing the transfer income tax on the Plaintiff is lawful (it cannot be deemed that the legality of the above disposition depends on whether to impose the gift tax on KRW 00,000,000, which was remitted by the Plaintiff to his wife Kim ○,

D. Determination on value-added tax and global income tax

1) The term "real estate rental income subject to income tax" refers to the income, etc. accruing from the lease of real estate or rights to real estate (Article 18(1) of the Income Tax Act), and the term "supply of services subject to value-added tax" refers to the provision of services or allowing the use of goods, facilities or rights on all contractual or legal grounds (excluding the supply of services without compensation) (Article 11(1) of the Value-Added Tax Act).

Therefore, a third party obtains profits by occupying and using land without any legal cause, and thereby causes damage to the landowner, and the amount executed by the owner after receiving a favorable judgment by filing a lawsuit seeking the return of unjust enrichment against the landowner shall not be deemed the proceeds from the sale of real estate rental income or the lease of real estate even if the court made the amount equivalent to the rent of the land in calculating the amount of the above profit or damage. Even if the court did not go through the judgment, it shall not be deemed the proceeds from the sale of real estate rental income or the lease of real estate. This is the same even if the third party without any legal cause occupies and uses the land and obtains profits thereby, and the landowner has agreed to compensate for the damages, so the income tax or value-added tax shall not be subject to taxation.

2) In light of the following circumstances acknowledged as above, the Plaintiff was ordered to pay 00,000,000 won as unjust enrichment on the land of this case under the name of Kim Young-dong, the trustee of this case, and thereafter, the non-party company, who owned the building of this case until the non-party company was awarded the bid for the building of this case, was paid 00,000,000 won as unjust enrichment on behalf of the non-party company on behalf of the non-party company on the part of the non-party company on behalf of the non-party company on behalf of the non-party company on behalf of the non-party 1, the total amount of KRW 00,000,000 under the lease agreement of this case and KRW 0,000,000,000 under the name of the non-party 1,000,000 won under the lease agreement of this case, and the remaining amount of KRW 0,000,000,000 under the title of the real estate lease agreement of this case.

Therefore, the imposition of value-added tax and global income tax on the taxable amount of KRW 00,000,000, not subject to taxation, is illegal.

E. Sub-committee

Therefore, the disposition of imposition of capital gains tax of this case is lawful, and the part on the tax imposition of capital gains tax of KRW 00,000,000 is legitimate, and the part on the tax imposition of capital gains tax of KRW 00,000 is unlawful.

Meanwhile, the above KRW 00,000,000 is land usage fees from December 25, 201 to June 30, 201. As such, global income tax for the portion reverting to 2009 and value-added tax for the portion belonging to January 2010 must be entirely revoked. The tax amount for global income for the portion belonging to 2010, global income tax for the portion belonging to 2010, global income tax for the portion belonging to 2010, and each amount of value-added tax for the first period of January 201, shall be revoked only for the portion exceeding the legitimate tax amount by calculating the legitimate tax amount. However, as seen above, the above amount of land usage fees for KRW 00,000,000 were over two years, and there was no objective data necessary for calculating the lawful tax amount, and thus, it is impossible to calculate the lawful tax amount, and thus, the disposition of imposition of value-added tax and global income tax in this case shall be revoked (see, e.g., Supreme Court Decision 2004Nu24.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and it is dismissed as it is without merit. It is so decided as per Disposition.