Review Transfer 2009-0248 (2010.02)

National tax exclusion period applicable where the title trust real estate is imposed on the actual owner;

Even if a title trustee transferred real estate held in title and paid a return, if the title truster imposes tax on the actual owner of the title truster, the exclusion period for imposition of national taxes shall be seven years, considering that the title truster fails to file a tax base return within the statutory due

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

○ ○

1.The director of the competent tax office;

2. The head of Gangnam-gu Seoul Metropolitan Government;

1. The plaintiff's claims against the defendants are all dismissed.

2. The plaintiff shall bear the litigation costs.

On July 1, 2009, the imposition of KRW 10,941, 740,330 of the transfer income tax for the year 2003 by the head of the defendant Samsung District Tax Office and the imposition of KRW 1,094,174,030 of the income-proportional resident tax for the year 2003 by the head of Gangnam-gu Seoul Metropolitan Government shall be revoked.

1. Details of the disposition;

A. On November 8, 200, 00 ○○ District Court 99 another 110402 square meters, 135 0 m21,070 m2, 135-19 m2, 135-19 m2, 135-22 m2, 135-23 m2, 199 m2, 136-1, 56 m2, 136-2, 4,87 m2, 136-3 m2, 523 m2, 137 m2, 137-2, 137-2, 188 m2, 137-2, 188 m2, 137-188 m2, 199 m2, hereinafter referred to as m297 m29, hereinafter referred to as m297 m2, etc.

나. 주식회사 △△인(원고가 중토개발 주식회사를 인수하여 2001. 11. 16. 그 상호를 주식회사 ♤♤드로 변경하였고 그 후 ♤♤드의 법인등기부상 상호가 2003. 3. 21. '△△인'으로 2007. 7. 19. '▲▲스'로 각 변경되었는데, 이하에서는 통칭하여 '소외 회사'라 한다)은 2003. 2. 24. 이 사건 토지 중 ○○시 ○○동 135-22 토지를 제외한 나머지 토지(이하 '쟁점 토지'라 한다) 중 김AA 지분을 금 253억 원에 매수하는 계약을 체결했다.

C. On May 31, 2004, KimA calculated the transfer income tax on the transfer of the land at issue by the standard market price and reported the confirmation of transfer income tax, and accordingly paid KRW 462,639,000 as income tax calculated.

D. As a result of the tax investigation against the non-party company, the director of the Central District Tax Office determined that the plaintiff acquired the land of this case under the name of KimA and transferred the land to the non-party company, and notified the defendant Samsung director of the District Tax Office of the correction of the transfer income tax by calculating the issue of the transfer income tax as the actual transaction price pursuant to Article 96 (1) 5 of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the "Income Tax Act") and Article 162-2 (2) 1 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 18705 of Feb. 19, 2005; hereinafter the "Enforcement Decree of the Income Tax Act").

E. On July 1, 2009, the head of Samsung District Tax Office issued the instant disposition imposing capital gains tax of 10,941,740,330 won for the transfer of the pertinent land to the Plaintiff on July 1, 2009. According to the above disposition imposing capital gains tax, the head of Gangnam-gu Seoul Metropolitan Government imposed capital gains tax of 1,094,174,030 won on the Plaintiff as the tax base.

[Reasons for Recognition: Facts without dispute, entry of Gap 1 and 2 evidence, purport of the whole pleadings]

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The disposition imposing the transfer income tax of this case is unlawful for the following reasons, and as long as the disposition imposing the transfer income tax of this case is unlawful, the disposition imposing the transfer income tax of this case is also unlawful.

(1) Absence of title trust relation

The Plaintiff did not have title trust the instant land to KimA. The Plaintiff and KimA together intend to operate a hot spring business, while KimA’s investment in the instant land in the manner of investing in the said land, and the Plaintiff retired from office and disposed of it, and thus, they did not have accrued gains on transfer of the instant land to the Plaintiff.

Even if the plaintiff is regarded as a partner of a hot spring business as a co-owner of the key land, the report of capital gains tax on the key land made by KimA is not a trustee but merely on behalf of the same business.

(2) Illegal in the calculation of gains on transfer

Even if the Plaintiff is the actual owner of the pertinent land, the instant sales contract is a blanket transfer contract for the key land and the business rights attached thereto. Of the instant sales price of KRW 25.3 billion, the amount of KRW 17.1 billion out of the sales price of the instant land is the transfer price of business rights attached to the key land, and eventually, the transfer price of the instant land is merely KRW 8.14.43 billion, and thus, the transfer price of the instant land does not exceed KRW 2.712 billion (the transfer price of KRW 8.143 billion - the auction price of KRW 5.43 billion), even though the transfer price of the instant land does not exceed KRW 2.5.3 billion, Defendant Samsung Co., Ltd made the instant detailed disposition of the transfer income and the instant land under the premise that the total amount of KRW 2.5.

In addition, although the plaintiff was not fully paid the purchase price of the land from the non-party company, the defendant Samsung Tax Office included both the unrealizedable purchase price and the unpaid price in the tax base of capital gains.

(3) The exclusion period of imposition expires

The legal return deadline of the transfer income tax on the land at issue is May 31, 2004. The disposition imposing the transfer income tax of this case was made on July 1, 2009 when five years have elapsed since then, and the exclusion period for imposition was imposed.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

(1) The relationship between the Plaintiff and the KimA

(A) Since becoming the director of the household manufacturing company operated by the Plaintiff, KimA was employed as a director at the △ Development Co., Ltd. established by the Plaintiff around January 30, 1998 (round January 2002, KimA became the chairman of the Plaintiff and the representative director of KimA became the representative director of the Plaintiff), and it was employed as a director at the △△△ Group established by the Plaintiff around March 17, 2001.

(B) If the Plaintiff plans the overall proposal, such as selecting the auction goods, the Plaintiff and the KimA conducted the auction business using each of the above companies established by KimA to raise the auction funds.

(2) The process of awarding the instant land

(A) On September 200, southB, the owner of the land of this case where hot spring was discovered, proposed that the Plaintiff would pay the remainder of the successful bid price on the land of this case where the compulsory auction procedure is in progress, instead of paying a bid deposit, and that the Plaintiff would also pay a honorarium for the subsequent years.

(B) After allowing KimA to review the feasibility of the hot spring business in the instant land, the Plaintiff received a report on the feasibility of the project, and once again, after receiving the bid of the instant land at the request of SouthB, the Plaintiff would directly promote the construction and sale business of hot spring amusement facilities (hereinafter referred to as the “hot spring business”) in the instant land in the event that the remainingB fails to implement the said agreement. Accordingly, the Plaintiff explained the aforementioned circumstances to the ○○○ church member, and then, once he received the contract and proposed that the instant land should be jointly awarded a successful bid and used as the site for the construction business of a church welfare center for senior citizens, after acquiring the degree of 9,917 square meters of the land under the name of KimA and △△△△ Council, in which case the remaining B did not implement the agreement.

(C) By accepting the above proposal and jointly receiving the bid price for the instant land with KimA. Unlike the initial agreement, the remainingB did not pay the remainder of the bid price. Therefore, KimA and △△ school jointly received a loan from a financial institution and paid the remainder in full.

(3) The reasons why the hot spring business right and the ownership transfer of the land in this case

(가) 원고는 온천사업 추진을 위해 중토개발 주식회사를 인수해서 2001. 11. 16. 그 상호를 주식회사 ♤♤드로 변경하면서, 그 대표이사로 취임했다.

(나) 김AA은 소외 회사의 직원으로 실무적인 일을 맡아 처리해왔으며, 2001. 3. 27. 이 사건 토지에 관한 권리 및 그 토지의 개발권, 온천공의 사용권 등 전부를 소외 회 사(주식회사 ♤♤드)에 위임한다는 위임장을 작성한 바 있다.

(다) 김DD은 2002. 12.경부터 원고가 추진하던 온천사업권과 그 사업부지인 쟁점 토지를 매입하기 위해 수신인을 소외 회사(주식회사 ♤♤드), 참조인을 원고로 한 매입제안서를 보냈으며, 원고로부터 소외 회사의 주식과 경영권을 인수하고, 쟁점 토지는 소외 회사의 명의로 매수하는 방식으로 원고가 추진하던 온천사업권과 그 사업부지인 쟁점 토지를 인수하기로 했다.

(D) On February 24, 2003, the non-party company (the non-party company) entered into a sales contract with the purport that the non-party company (the non-party company) purchases the KimA's equity shares in the key land at KRW 25.3 billion (the non-party company shall immediately pay the purchase price of KRW 2.5 billion after acquiring a land transaction permit; the loans of the national bank shall be succeeded by the non-party company; the remaining purchase price of KRW 15.6 billion shall be paid to March 25, 2003). The seller at the time under the sales contract was KimA; the buyer was appointed as the representative director on March 21, 2003 as the non-party company representative director; and on the same day, KimA retired from the director of the non-party company on the same day. In addition, when entering into the above sales contract, the purchase price for the land at issue shall be KRW 3.0 billion including the shares of △ school, and the total share of KRW 2.5.3 billion in the shares to 29.8 billion.

(E) The share ownership in the name of KimA was transferred to the non-party company on March 25, 2003 due to the sale and purchase on February 24, 2003. Meanwhile, the share ownership in the name of ○○○○-dong 135-22 land was transferred to GaE on February 24, 2003 on the ground of the sale and purchase on March 17, 2003. The share ownership in the name of ○○ school was transferred to GaE on May 13, 2003 on the ground of the gift on May 10, 2003.

(4) Sales price of the pertinent land

On March 25, 2003, the non-party company (the non-party company) issued five copies of promissory notes causing 13.2 billion won in face value with the payee KimA for the payment of KRW 13.2 billion out of the above purchase price (hereinafter referred to as "the Promissory Notes in this case"). When delayed payment, the non-party company (the non-party company) prepared and delivered a notarial deed stating that no objection is raised even if it is enforced immediately (the notary public, No. 1681 through 1685 of the 2003 North Korean Joint Law Office, Law Office, No. 1681), and on May 30, 2003, the KimA transferred the total amount of the instant promissorysory Notes to Ga, and notified the non-party company on May 31, 2003. In addition, the non-party company made deposit in the name of the bank from March 25, 2003 to May 7, 2004 to 108.

(5) Progress in the case of evasion of compulsory execution by KimA with respect to the Promissory Notes of this case

(A) Around July 8, 2003, KimA received a promissory note No. 1681, which was authenticated by No. 1681 (hereinafter referred to as a " Promissory note No. 1681) from the Promissory Notes No. 1681, and then presented it to KimD, and received a face value of 1.5 billion won at the face value. Around July 8, 2003, KimA used the Promissory Notes No. 1681 as a deposit for provisional seizure, which was made with respect to its shares among the instant land.

(B) In addition, on August 2006, KimA issued a false promissory note notarial deed to the FF, thereby allowing this FF to obtain an order from the court to seize claims against the right to claim the recovery of the above amount of deposit in the sea and to attach claims against it. The KimA was prosecuted on May 7, 2007 as a crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) (the indictment was modified from the appellate court to the crime of evading compulsory execution).

(C) In the above criminal procedure, the Plaintiff himself/herself is the actual owner of the instant land, and KimA is only the trustee. As such, the notarial deed of promissory note received as the purchase price is also owned by KimA, and as KimA transferred it to ParkE, the actual owner of the promissory note No. 1681 brought up by KimA was also the actual owner of the promissory note that he/she is himself/herself and ParkE. Since KimA is a partner of the hot spring business, KimA stated to the effect that the right to claim for the collection of the amount of the deposit at sea, including the instant bill, is also the joint ownership

(D) On August 20, 2009, the Seoul High Court, which was the appellate court, judged that the act of the KimA by the appellate court was an act of bearing false debts for the purpose of evading the compulsory execution of ParkE, which is the transferee of the promissory note deposit, on the ground that the act of the KimA, even though it was based on the minimum KimA's claim on August 20, 209, on the grounds that it was "the obligation to settle the business relationship with the plaintiff", constitutes an act of bearing false debts (2008No2575), and the above judgment was finalized by the Supreme Court's dismissal of the appeal by the Supreme Court on November 26,

(6) The progress of the case of demurrer related to the Promissory Notes of this case

(A) On June 2005, the non-party company entrusted the whole of the controversial land and hot spring business rights to the trust company of Bright Trust Co., Ltd. (hereinafter referred to as “Bright Trust”) to carry out the business. In this regard, the non-party company was required to submit a report on the claim related to the above business and to postpone the exercise thereof.

(B) On June 7, 2005, KimA submitted a letter of deferment of the exercise of claims on the claims for a promissory note authenticated by No. 1682 among the Promissory Notes of this case (No. 1682). However, on December 18, 2006, ParkE commenced compulsory execution based on a promissory note No. 1682, Dec. 18, 2006.

(C) In the lawsuit of demurrer, the Nonparty Company asserted that the above compulsory execution should not be denied, and the actual owner of the instant land is the Plaintiff. At the time, the Plaintiff at the time argued that the Plaintiff was the actual owner of the instant land, as the Plaintiff was liable to pay for the loan to the Industrial Bank of Korea of KimG, and thus, there was a risk of being subject to compulsory execution in the event of an auction of real estate under the Plaintiff’s name. Since 5 years have not passed since the Plaintiff’s establishment was made, △ Development Co., Ltd., which was established, imposed heavy taxes and public charges, such as registration tax, etc. in the event of a bid under the said company’s name, and thus, it was subject to the bid of the instant land by borrowing the name of KimA. Accordingly, the right holder of the instant promissory note, which was paid as the purchase price of the pertinent land, was the Plaintiff

(D) On September 24, 2009, the Seoul High Court, which was the appellate court, accepted the ParkE’s claim on September 24, 2009, sentenced the non-party company to a partial failure (2008Na103627) (the above judgment was affirmed by the Supreme Court’s dismissal decision on February 11, 2010 (209Da82336).

[Ground for Recognition: Facts without dispute, Gap evidence 3, 4, Gap evidence 5-1, Gap evidence 5-2, Gap evidence 14-2, Gap 20, 21, 24, and 26-1, Gap evidence 27-2, Gap evidence 28, 30, Gap evidence 34-1, 2, Eul evidence 3-3-1 through 7, Eul evidence 5, 8, Eul evidence, Eul evidence 1, 11 through 15, the whole purport of the pleadings (any evidence of Gap 20, 23, 24, Gap evidence 27-1, 27-2, Gap evidence 1, 35-1, 2, Eul evidence 12, and 12-12 against the above recognition)]

D. Determination

(1) Whether a title trust relationship exists with respect to the instant land

In full view of the above facts and the following circumstances known therefrom, it is reasonable to view that the Plaintiff, not KimA, is the actual owner of the instant land, and that KimA is only the title trustee of the instant land. Therefore, the Plaintiff’s assertion against this point is not acceptable.

(A) The Plaintiff and KimA have been running real estate auction business since before 1998. However, rather than a horizontal club business relationship, if the Plaintiff instructs KimA, it seems that KimA was a superior relationship in which KimA dealt with practical human affairs.

(B) Upon the request of SouthB to receive a successful bid on behalf of the first land in question, leading the entire process of acquiring the land of this case by participating in the △△ Council as a joint successful bidder and preparing a bid deposit in order to realize the actual successful bid. It is not KimAA but KimB.

(C) The purchase proposal that KimD sent out the non-party company as a receiver of the land at issue is indicated as the plaintiff, not KimAA, and thus, the seeer also seems to have been the plaintiff. At the time of entering into a sales contract with the non-party company (△△ corporation), the plaintiff led to the negotiations, and the issue of dealing with the shares held by △△△ branch was resolved by the plaintiff.

(D) Most of the sales price paid for the pertinent land belonged to Park E, who is the Plaintiff’s wife. In addition, since the non-party company purchased the pertinent land and paid part of the sales price on March 25, 2003, it was necessary for the seller to secure the payment of the remaining sales price. Since KimD was on March 21, 2003, he was appointed as the representative director of the non-party company, Kim AA was immediately retired from the director of the non-party company, while the Plaintiff still maintained the director’s position while holding part of the non-party company’s shares, it is presumed that the Plaintiff’s interest, not KimA, was higher in relation to the payment of the remaining sales price.

(E) In the criminal proceedings where the Plaintiff and Park E-E filed an objection against the claim related to the purchase price of the pertinent land and KimA, the Plaintiff revealed the circumstances leading up to the title trust to KimA in order to avoid heavy taxation following the acquisition of the instant land and the prosecution from the creditors against the Plaintiff, and argued that the actual owner of the instant land is the Plaintiff, and that the same assertion was accepted in each relevant judgment, which became final and conclusive.

(2) Whether the calculation of transfer margin is unlawful

According to the statement in Gap evidence No. 7, it is recognized that only the portion of the land at issue is indicated in the real estate sales contract with the purchase price of KRW 25.3 billion as the object of sale, and that there is a special agreement that separates the shares in KimA and shares in the land at issue from the land at issue to determine the price separately. Thus, it is difficult to accept the plaintiff's assertion that the portion exceeding KRW 8.1 billion out of the sale price at 25.3 billion out of the above sale price is not the share transfer price in the name of KimA for the land at issue, solely on the ground that the price for the shares in △△ church out of the land at issue is KRW 2.9 billion and that the price for the shares in Kim A out of the land at issue at issue remains KRW 8.1 billion

In addition, Article 98 of the Income Tax Act and Article 162 (1) 1 of the Enforcement Decree of the Income Tax Act provide that in calculating gains on the transfer of assets, where the date of liquidation is unclear, the date of transfer recorded in the register shall be deemed the date of asset transfer. In this case, the fact that the ownership of shares in the name of KimA on the land at issue was transferred to the non-party company on March 25, 2003 is the same as mentioned above. Thus, the plaintiff's assertion that the gains on the transfer (tax base) of the land at issue is not confirmed in connection with the transfer of the land at issue cannot be accepted (it cannot be said that there was no gains on the transfer of the non-paid portion because

(3) Whether the exclusion period has expired

(A) The former Framework Act on National Taxes (amended by Act No. 8139, Dec. 30, 2006; hereinafter referred to as the “Framework Act on National Taxes”) provides that with respect to the exclusion period of national taxes, when a taxpayer evades, refunds, or deducts national taxes by fraudulent or other unlawful means, it shall be for 10 years from the date on which the national tax is assessable, where a taxpayer fails to file a tax base return within the statutory due date of return, for 7 years from the date on which the national tax is assessable, and for 5 years from the date on which the national tax is assessable, where the taxpayer does not fall under any of the two preceding cases (Article 26-2(1))

(B) If a title truster transfers real estate to a third party and income from such transfer was attributed to a title truster, under the principle of substantial taxation under Article 14(1) of the Framework Act on National Taxes, the person liable to pay the relevant capital gains tax, who is the subject of the transfer, does not belong to the title truster. In other words, the person liable to file a final return on tax base of capital gains in the transfer of real estate held in title trust, is the title truster, who is the subject of the transfer, is the person liable to pay the tax, so even if the person filed a return and payment under the name of the title trustee, it cannot be deemed that there was a legitimate return and payment by the tax payer (see Supreme Court Decision 96Nu6387, Oct. 10,

(C) The final return of capital gains tax on the transfer of the land at issue and the person liable for payment are the Plaintiff, who is the title truster of the land at issue, and it is reasonable to deem that the exclusion period of capital gains tax in this case is seven years applicable to "where the taxpayer fails to file a tax base return within the statutory due date of return". Thus, the imposition of capital gains tax in this case made on June 1, 2004, which is the initial date of the exclusion period, within seven years from June 1, 2004, and July 1, 2009, which is the initial date of the exclusion period of imposition.

(4) Sub-determination

The Plaintiff’s assertion that the disposition imposing capital gains tax of this case is unlawful is without merit, and thus, the disposition imposing capital gains tax of this case is lawful. As long as the disposition imposing capital gains tax of this case is legitimate, the disposition imposing capital gains tax of this case is legitimate. The disposition imposing capital gains tax of this case is legitimate

3. Conclusion

The plaintiff's claim against the defendants is dismissed as it is without merit.