The Plaintiff is the subject of unregistered pre-sale, and gains on transfer from unregistered resale accrue to the Plaintiff, thereby complying with the principle of substantial taxation.

The plaintiff asserts that the plaintiff's spouse entered into an unregistered pre-sale contract under the name of the plaintiff and not the subject of the unregistered pre-sale sales contract, but the plaintiff does not belong to the plaintiff. However, since the amount equivalent to the marginal profit is used for the purchase of apartment buildings in the name of the plaintiff, the plaintiff is a person to whom the real income accrued from the Unregistered resale, the disposition against

Article 14 of the Framework Act on National Taxes, Article 96 of the Income Tax Act

2014Guhap1186 Revocation of Disposition of Imposing capital gains tax

IsaA

Head of Suwon Tax Office

March 6, 2015

March 27, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

The Defendant’s imposition of the capital gains tax of 2008 against the Plaintiff on January 6, 2014 is revoked.

1. Details of the disposition;

A. OO also owned a land owned by KimB, the OO-gu OOO 690 cemetery 2,658 square meters (hereinafter “the instant land”). As to the said land, the registration of transfer of ownership was completed on April 18, 2008 in the future on June 5, 2008, on the ground of the trade of the maximumCC, DuD, and YangE (hereinafter “minimumCC, etc.”).

B. On January 6, 2014, the Defendant purchased the instant land from KimB through a tax investigation conducted on the tax evasion report, and determined that the Plaintiff obtained transfer margin from the OOOO members by pre-saleing the instant land to the largestCC, etc., and rendered a disposition imposing an OO member of the capital gains tax belonging to 2008 on the instant land (hereinafter “instant disposition”).

C. The Plaintiff filed an appeal with the National Tax Service on April 7, 2014, but was dismissed on May 20, 2014.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3 (including branch numbers; hereinafter the same shall apply), Eul evidence No. 9, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The instant land did not purchase the Plaintiff’s land by stealing the Plaintiff’s name, the deceased Fur (Death on May 3, 2009) or StateGG that has invested in real estate for a long time with the Plaintiff’s husband, thereby taking advantage of the Plaintiff’s name, and thus, the instant disposition was unlawful.

2) In addition, Kim H, II, Kim J, Kim J, and Kim KK (hereinafter “GG, etc.”) already reported and paid the OOOO as capital gains tax, and the State GG paid this to Kim H, etc., the said OOOOOO shall be deducted from the amount of tax to the Plaintiff.

B. Relevant statutes

(1) The former Framework Act on National Taxes (amended by Act No. 9911, Jan. 1, 2010)

Article 14 (Real Taxation)

(1) Where the ownership of income, profit, property, act or transaction subject to taxation is merely nominal and a person to whom such ownership belongs exists, tax-related Acts shall apply to such person to whom such person actually belongs as a taxpayer.

(2) The provisions on the calculation of tax base in tax-related Acts shall apply according to the substance, regardless of the name or form of income, profit, property, act or transaction.

(3) Where it is recognized that benefits under this Act or other tax-related Acts are obtained unfairly by means of indirect means via a third party, or through two or more acts or transactions, this Act or other tax-related Acts shall apply, deeming that the relevant party has made a direct transaction or has engaged in an act or transaction consecutively in accordance with the economic substance thereof.

C. Determination

1) Whether the Plaintiff is the subject of an unregistered pre-sale

In light of the following facts and circumstances, it is reasonable to deem that gains from the transfer of unregistered pre-sale of the instant land belongs to the Plaintiff, and there is no counter-proof otherwise, the instant disposition based on the premise that the Plaintiff had sold the instant land unregistered, is lawful, in view of the following facts and circumstances, which can be acknowledged by comprehensively considering the purport of the entire pleadings, as stated in the evidence No. 2, 7, 10, 14, 15, 16, and 17:

① On January 23, 2008, a sales contract with the name of the buyer as of January 23, 2008 as to the land of this case was prepared, and an unregistered pre-sale was made.

② On February 11, 2008, the day immediately before the payment date of the remainder under the sales contract dated January 23, 2008, the Plaintiff appears to have borne part of the purchase fund in light of the fact that OOOOO was issued from the national bank account account under the Plaintiff’s name to the Busan Bank account of the StateG.

③ After the price of the instant land sold to the largestCC, etc. was deposited into the Busan Bank account of the State, the StateG transferred the KRW OOO to the Busan Bank account of ParkF on June 16, 2008, and ParkF transferred the KRW OOO to the Plaintiff’s Busan Bank account until August 22, 2008.

④ On June 17, 2008, immediately after the unregistered transfer of the instant land, the Plaintiff purchased LLL apartment Nos. 102 and 105, OO-dong 490, OO-dong 490, OO-dong 105, and completed the registration of ownership transfer under the Plaintiff’s name on July 11, 2008. The money transferred to the Plaintiff’s account appears to have been used as a purchase fund.

2) As to the Plaintiff’s assertion of deduction of capital gains tax

The transfer income tax to be borne by the Plaintiff, who is the prime seller of the instant land, Kim H, etc. and the transfer income tax to be borne by the Plaintiff, who is the unregistered pre-sale seller, are different from the tax payment requirements. Thus, even if Kim H, etc. reported and paid the transfer income tax according to the Plaintiff’s assertion, it cannot be deducted from the transfer income tax

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed as there is no ground.