Cho High Court Decision 2009Du1703 (No. 28, 2009)

Fact-finding as to whether a person is two houses for one household, including title trust housing

In light of the source of a bid bond for a house held in title trust, the circumstances of residence of a house, the subject of payment of the loan interest, etc., it is difficult to deem that a house was

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

1. The Defendant’s imposition disposition of KRW 26,889,670 against the Plaintiff on March 1, 2009 shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On July 27, 1998, the Plaintiff acquired Da-dong 270, 704, 104, 104, Da-dong Da-dong (hereinafter “the first house”), and transferred on August 29, 2003, but did not file a transfer income tax on the ground that it constitutes a transfer of one house for one household owned for at least three years.

B. Meanwhile, on the register, 308 EE Village 38 EE Village 308, 203, 203 on June 11, 2001 (hereinafter “the second house of this case”) was acquired by MaA on June 30, 201, but was transferred to the Plaintiff on August 30, 2005.

C. As a result of the on-site investigation of the capital gains tax against leapA, the Defendant: (a) determined that the instant second house was the property owned by the Plaintiff in trust with leapA as of June 11, 2001; and (b) determined that the Plaintiff at the time of the transfer of the instant first house ( August 29, 2003) is the owner of two houses for one household; (c) excluded the application of non-taxation on the income accrued from the transfer of the instant first house; and (d) rendered the instant disposition imposing KRW 26,889,670 on the Plaintiff on March 1, 2009.

C. The Plaintiff, who is dissatisfied with the instant disposition, filed an appeal with the Tax Tribunal for adjudication, but on 2009.

5. The dismissal was made on 28.

[Ground of recognition] Evidence Nos. 5, Eul evidence No. 1-2, Eul evidence No. 2-1-3, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The parties' assertion

(1) Plaintiff

The second house of this case was knocked by leA, and at the time of the successful bid, the plaintiff only lent money short of leA to leA, and since then the amount of the right to collateral security set up by leapA cannot be leased, the plaintiff moved in the second house of this case. The purchase of the second house of this case was the first purchase of the second house of this case, not the title trust of leA to leA.

(2) Defendant

3,3350,00 won of bid bond for the second house of this case was directly received by the plaintiff and paid by the plaintiff, and for the remainder payment, the second house of this case was owned by the plaintiff which was trusted by the plaintiff in the name of leA from the time of the successful bid, and the amount of KRW 21,00,000,000 borrowed from the loan of the second house of this case as collateral for the remainder payment, and KRW 31,00,000,000,000 from the loan of this case, and KRW 21,000,000,000 from the loan of leA to all of the plaintiff. In light of the fact that the plaintiff continued to reside in the second house of this case since the three months period of acquiring the second house of this case,

(b) Fact of recognition;

(1) On October 30, 200, the plaintiff, leA, and Lee Jong-il were awarded a successful bid for the commercial building of 1,50,000 Won for the remainder payment (successful bid price: KRW 67 million), and the successful bid was revoked because the plaintiff, leA, and Lee Jong-il were transferred money from 1998 to 198 to 24,50,000 won for the remainder payment, and the successful bid was determined to have been too high for the successful bid price while keeping 49,00,000 won for the remainder payment.

(2) Thereafter, on November 28, 200, apA received the second house of this case in KRW 33.5 million. In order to pay a bid bond for the second house of this case, apA demanded a refund of KRW 2.4.5 million in its own money and KRW 8.5 million in its bid bond (3.3.5 million in its own money) with the remainder of KRW 8.5 million in its own money and KRW 33.5 million in its bid bond (the above amount is lent to leA) from the Plaintiff, and paid KRW 33.5 million in its bid deposit with the Plaintiff.

Then, on December 20, 200, the Plaintiff transferred all the remaining money of this le-day kept by le-day to le-A (this le-day seems to have invested or lent the said money to le-A in relation to the second house of this case). In addition, on February 15, 2001, the Plaintiff remitted the bid bond of KRW 11,00,000,000,000 to le-A.

(3) On June 11, 2001, the remainder payment date of the instant second house, KRW 90 million, which was remitted from the Plaintiff, KRW 21 million, and its own money, which was remitted from the interest rate, and KRW 20 million, which was remitted from the Plaintiff, and KRW 21 million,00,000,000,000, which was loaned from the FF bank, as security for the instant second house, it paid the balance of the instant house and KRW 340,000,000,000,000,000,000 won.

(4) While apA sought to lease the instant second house, the share of the house secured loan amount was too high, it was decided to lease it to the Plaintiff at KRW 250 million on August 26, 2001, but the deposit was appropriated to the amount indicated in the foregoing paragraph (2) borrowed by apA from the Plaintiff on an interest-free day, and the deposit was appropriated to the amount indicated in the said paragraph (2). The apA decided to repay 100 million won out of the house secured loan amount borrowed by apA on behalf of the Plaintiff.

On September 22, 2001, the Plaintiff was a director of the instant second house.

(5) Thereafter, around November 2002, leapA received KRW 110 million from the Plaintiff, and around November 15, 2002, around November 2002, leapA made a registration of the Plaintiff as to the second house of this case on November 15, 2002, the right to claim the transfer of ownership on the ground of a pre-sale agreement (Evidence A 12) made on November 15, 2002, and on January 21, 2003, repaid in full KRW 110 million in the balance of the housing mortgage loan funds of FF Bank Co., Ltd.

AapA has paid the interest of KRW 140,000,000 per month at the time of the initial loan of KRW 210,000,000,000 per month and paid the interest of KRW 100,000 per month after repayment of KRW 100,000 per month.

(6) On February 21, 2003, the Plaintiff: (a) around February 21, 2003, paid on behalf of the Plaintiff the principal and interest of KRW 37 million lent to apA with respect to the instant secondary housing; and (b) apA drafted a receipt (Evidence A-1) that the Plaintiff received KRW 37 million as part of the purchase price of the instant secondary housing (Evidence A).

(7) Accordingly, the mediation was concluded that "AapA shall pay 23 million won to AapA at the same time as it is necessary for AapA to complete the principal registration procedure based on the registration of the transfer of ownership, which was completed by AapA from August 10, 2005, on August 10, 2005."

[Reasons for Recognition] Evidence No. 4, Evidence No. 7, Evidence No. 9-1, 2, Evidence No. 12, Evidence No. 18, Evidence No. 26, Evidence No. 27, Evidence No. 3-4, Evidence No. 3-3, and 4, Evidence No. 7, Evidence No. 9-1, and the purport of the whole pleadings

C. Determination

As seen earlier, in light of the source of the bid bond for the second house of this case, the Plaintiff additionally paid the deposit for lease on a deposit basis, the background that the Plaintiff resided in the second house of this case, the process that the Plaintiff acquired the second house of this case after making a provisional registration based on the subscription for sale and purchase, the process that the Plaintiff acquired the second house of this case, and the payment entity of the interest on the loan for the second house of this case, etc., even though the Plaintiff had resided in the second house of this case from September 201 to September 2001, it is difficult to view the second house of this case as the Plaintiff trusted the second house of this case to A, on the premise that the Plaintiff was acting in trust with the second house of this case, and thus, the disposition of this case is unlawful.

3. Conclusion

Thus, the plaintiff's claim seeking the cancellation of the disposition of this case is justified and it is so decided as per Disposition.