Cho High Court Decision 201Do1745 (No. 24, 2011)

Since it is recognized that only a trustee is a mere fact, the imposition of capital gains tax is illegal.

In light of the fact that the owner of the real estate office purchased the title of the land after becoming the employee of the real estate office, the remaining amount distributed to the creditors out of the proceeds from the sale of the land was paid to the other party to the transaction of the real estate office, and the fact that the employees of the real estate office handle the affairs related to the public sale of the land

2011Gudan24050 Revocation of Disposition of Imposing capital gains tax

South AAAA

The head of Yangcheon Tax Office

June 14, 2013

June 28, 2013

1. The Defendant’s imposition disposition of capital gains tax of KRW 000 on December 3, 2010 shall be revoked against the Plaintiff.

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 15, 2004, in the name of Nonparty OO, the ownership transfer registration for the sale on July 15, 2004 was made under the name of the Plaintiff on July 15, 2004 with respect to the land of approximately 202 square meters in Yeongdeungpo-gu Seoul Metropolitan Government (hereinafter “instant land”). On June 18, 2008, the ownership transfer registration for the public sale was made under the name of Nonparty OO on June 12, 2008.

B. On June 11, 2009, the Plaintiff filed a return on the tax base of transfer income with the transfer value of the instant land KRW 000, and the acquisition value of the instant land KRW 000,000 with the Defendant, but the Defendant, on December 3, 2010, should be deemed as the Plaintiff’s acquisition value reported by EO, the former owner, as the transfer value, to the Plaintiff, and the instant disposition was issued to correct and notify the transfer income tax of KRW 000 for the year 2008.

C. The Plaintiff filed a request for a trial with the National Tax Tribunal on May 4, 2011 upon receipt of an objection on January 11, 201, but was dismissed on June 24, 201.

[Reasons for Recognition] Unstrifed Facts A2, 4 evidence, and the purport of the whole pleadings

2. The plaintiff's assertion

"A. The plaintiff, around 2004, entered the "O" operated by the plaintiff as an employee, and entered the name of the purchaser to sell the housing and the land in this case upon the request of the leastO, and the actual purchaser was the O and the income accrued therefrom was attributed to the O. Therefore, the transfer income tax following the transfer of the land in this case was illegal against the plaintiff who is the title truster, and is merely the title trustee."B, even if the plaintiff is the taxpayer, it is sufficiently recognized that the actual acquisition price of the land in this case was 00, and unlike the sales contract (Evidence No. 3) submitted by the plaintiff, it is unlawful to deem the defendant as the acquisition price of the land in this case and to revise and notify the transfer income tax as the acquisition price of the land in this case.

3. Whether the disposition is lawful;

(a) Relevant statutes;

Paper in the Appendix

B. Determination

We examine the plaintiff's first argument.

1) In the event that real estate is trusted to a third party, if the title truster transfers the real estate to the third party and the income accrued therefrom belongs to the title truster, and under the principle of substantial taxation as stipulated in Article 14(1) of the former Framework Act on National Taxes, the taxpayer of the relevant capital gains tax does not become the taxpayer under the name of the title truster who is the subject of the transfer (see Supreme Court Decision 96Nu6387, Oct. 10, 1997).

2) In this case, Gap's 10 (including paper numbers), 12, 13 (including paper numbers), 14, 15 (Ga number 16, 17-1, 27-1, 2-5, 7-4, and 7-5 testimony of ProfessorO as a whole, can be recognized by taking into account the following circumstances, i.e., when the plaintiff was employed as a AO real estate employee at the last 2004 when the plaintiff acquired the ownership of the land in this case, 16, 160, 165, 17, 27-16, 27, and 7-5, 7-4, and 7-5, 700, and 3O under the name of the other party to this case, and 40, 160, 160, 1617, 160, 1617, 200, and 10,000.

3) According to the above legal principles and the above facts, and since the taxpayer of capital gains tax from the transfer of the instant real estate is the leastO, the title truster, and the instant disposition against the Plaintiff, the title trustee, was unlawful.

4. Conclusion

Therefore, the plaintiff's claim is justified without examining the remaining arguments.