Tax Tribunal 2013west 3217 (O6, 28)

Any disposition imposing capital gains tax on the Plaintiff on the Plaintiff by deeming the Plaintiff to be a real estate title truster who received the entire capital gains tax.

Any disposition imposing capital gains tax on the Plaintiff on the Plaintiff by deeming the Plaintiff to be a title truster of the transferred real estate in the process of confirming the use of the money by a delinquent taxpayer.

2014Guhap231 Revocation of Disposition of Imposing capital gains tax

KimA

Head of the District Tax Office

June 13, 2014

July 4, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s disposition of imposition of capital gains tax of KRW 000 for the year 2010 against the Plaintiff on April 16, 2013 is revoked.

1. Details of the disposition;

A. On May 11, 2004, 2004, ○○○-dong 467-6 (hereinafter referred to as “instant real estate”) had the ownership transfer registration made on December 5, 2003 under the name of KimB on May 11, 2004, under the name of ○○○-si ○○○○○-dong ○○○○-dong 467-6 (hereinafter referred to as “instant real estate”), and the ownership transfer registration made on December 8, 2010 under the name of AApoer on January 4,

B. On January 26, 2011, KimB reported the transfer income tax on the instant real estate as follows:

However, the pertinent tax amount was not paid.

C. In this case by submitting a false sales contract to KimB, the director of the tax office having jurisdiction over the sales contract.

The acquisition value of real estate was confirmed from 000 won to 000 won, and this was immediately confirmed, and on June 5, 2012, KimB issued a correction and notice of capital gains tax of 00 won.

D. Nevertheless, as KimB continued not to pay transfer income tax, the director of the Seoul Regional Tax Office conducted a tax investigation on the attribution of transfer income, etc., and thereafter notified the Defendant that the instant real estate was actually owned by the Plaintiff and KimB was merely a title trustee.

E. Accordingly, on April 16, 2013, the Defendant decided and notified the Plaintiff of KRW 000 as follows (hereinafter “instant disposition”).

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 8, Eul evidence 1 to 7 (including each number), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The actual cost actually incurred in acquiring the instant real property is about KRW 00,00,000, and KimB borrowed money from the other parties, such as OrA, KimCC, and Park ParkA. In addition, KimB has received the increased portion of the lease deposit for the instant real property and paid property tax for several years. In the meantime, KimB sold the instant real property, and KimB used the remainder of the money, excluding the refunded deposit amount of the lease deposit, to the Plaintiff (00,000,000,000,000) or to lend the money to the Plaintiff again. Accordingly, the transfer income of the instant real property cannot be deemed as substantially attributable to the Plaintiff. Accordingly, the instant disposition made on a different premise is unlawful and should be revoked.

(b) Fact of recognition;

1) The KimE, a spouse of KimD (the representative director of AApoer at the time of the instant case) decided to purchase the instant real estate at KRW 000 on May 2008, and deposited KRW 000 in total the down payment and intermediate payment to the new bank account in the name of the Plaintiff until July 1 of the same year.

2) After December 8, 2009, while Kim E-E delayed the payment of the balance due to the shortage of funds, the Plaintiff agreed to succeed to the purchaser’s status of the instant real estate in the payment that was reduced to KRW 000,000, and completed the payment of the purchase price by January 4, 2010.

3) In the process, the Plaintiff directly received the purchase price of KRW 000 as follows.

4) The Plaintiff paid KRW 000,000,000, which was received on January 4, 2010, to WW, a lessee of the instant real estate, as the name of return of deposit. The remaining KRW 000,000, which was deposited into a new bank account under the name of KimB on the same day, was deposited into a new bank account under the name of the Plaintiff, and KRW 000,000 next day was deposited into a new bank account under the name of KimB.

5) On March 27, 2013, KimD submitted a written confirmation to the tax authority stating that the real owner would have paid the purchase price to a new bank account in the name of the Plaintiff after hearing the explanation of the Plaintiff and hearing the explanation of the actual owner.

6) At the time of the investigation into the Seoul Director of the Seoul Regional Tax Office, the Plaintiff had a close relationship with her parents. The Plaintiff stated that the instant real estate was sold under the name of KimB by her own contract by borrowing the instant real estate under the name of KimB, and KimB also became the name of her own real estate in the name of her (GB).

It stated that only the fee has been taken.

7) The Plaintiff is operating a brokerage office in ○○-si ○○○-dong 467-4 as a licensed real estate agent.

Many multi-family housing and land are owned, and the income amount reported in 2009 reaches 00 won.

8) On the other hand, KimB reported from 1996 to 2008 amounting to 00 won in total, while ○○○○○○○○○○○○○○○○○○ 127, excluding subparagraph 127 of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○), there was no other real estate in its own name and no special financial assets have been verified. In addition, on November 29, 2010, 00 billion won was loaned as

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, 10 evidence, Eul evidence 5 to 18 (including each number), the purport of the whole pleadings

C. Determination

Article 14(1) of the Framework Act on National Taxes provides that if the ownership of income, profit, property, act, or transaction subject to taxation is nominal and there is another person to whom such income, profit, property, act, or transaction belongs, and if there is another person to whom such income, profit, or transaction belongs, the person to whom such income, profit, property, act, or transaction belongs shall be liable for tax payment. Article 14(2) of the same Act provides that the provisions on the calculation of tax base under tax-related Acts shall apply according to the substance regardless of the name or form of the income, profit, property, act, or transaction. Such substance over form principle is to promote equity in the imposition of tax by finding the place where the actual person has the ability to pay taxes in the case of a wrongful form or appearance. In the case of real estate transfer income, if there is

As to the instant case, the following facts revealed in full view of the purport of the oral argument, i.e., the Plaintiff’s acquisition of the instant real estate by borrowing money from KimB, i.e., (i) the Plaintiff received the bank account or received it directly as a check; (ii) KimB merely received 000 won among them; and (iii) the Plaintiff asserted that the Plaintiff received money from the previous KimB, or that it was a new loan, with regard to the process of tax investigation, the Plaintiff was not able to submit objective supporting documents, such as a loan certificate (not expressly stated about the repayment period or determination of interest); (iv) the Plaintiff did not assert that it acquired the instant real estate by borrowing money from the other party KimB; (v) the Plaintiff did not appear to have been able to purchase the instant real estate in its name because it was a real estate agent and a large number of real estate business income, and thus, the Plaintiff could not have known that the Plaintiff was able to purchase the instant real estate under the name of the representative director of the Plaintiff’s own real estate company and the Plaintiff’s real estate in its own name.

3. Conclusion

The plaintiff's claim is dismissed without merit, and the costs of lawsuit are assessed against the plaintiff who has lost.

It is so decided as per Disposition.