Suwon District Court support-2014-Shap-202178 ( October 28, 2015)

Dismissal of a claim for collection due to the absence of a claim for the purchase price of a delinquent

(as shown in the judgment of the first instance)

Seoul High Court 2015Na2025462 Collections

Korea

CCC et al.

Suwon District Court Branch 2014Gahap202178

September 16, 2015

October 28, 2015

1. Facts of recognition;

The following facts do not conflict between the parties, or there is evidence of Gap 1 through 4, 6 through 10, and Eul 1

Each entry of the evidence of paragraphs 17 to 17 (including the number of pages), and the witness DD and BB

Each testimony may be recognized by taking into account the overall purport of each pleading, and the evidence No. 5 shall be written.

Ro is insufficient to reverse this recognition.

A. Defendant AA’s implementation of land development projects with other buyers around October 2, 2002

Defendant AA purchased forest land on Dog-Mag-Mag-ri, Dog-ri, Dog-ri, Dog-ri. In the above process, Defendant AAA

Then, in order to obtain land development permission easily, the name of his spouse and the name of Defendant CCC, his spouse.

In addition, the name of DD, which is a partner of the Defendant AAA, is not only the use but also the name of DD.

The defendant AA had to pay acquisition tax and medical insurance premiums to DD around November 2002. The defendant AA had to pay acquisition tax and medical insurance premiums to DD.

to bear all expenses incurred in the registration of title trust, such as commercial portion, capital gains tax, resident tax, etc.

Around January 28, 2003, a contract was made with DDR to pay KRW 2 million as the price name of title trust.

C. Meanwhile, DD does not call up the seller in the course of selling and buying the forest in 39-4 forest in Dol-ri, Dolsan.

There is no involvement in the sale, such as that.

B. Defendant AA’s share 3234/59306 out of the forest land in 39-4, 2003.2.6 February 6, 2003

여 DDD 명의로 지분이전등기를 경료하였다. 그 후 □□시 □□면 □□리 산 ▶▶-▶

The forest land of this case (hereinafter referred to as the "forest land of this case") is from May 23, 2003

DDR was divided, and DDR was divided on May 28, 2003, and co-owners with respect to the forest land of this case by division of co-owned property

The transfer registration of all shares was made.

C. On January 10, 2011, Defendant CCC shares 191/3234 out of the forest land of this case, BB

on January 10, 2011, with respect to shares in MM/M out of the instant forest land, each transfer registration for shares in MM/M is made.

A. In addition, for each transfer registration, DDR, which is a registered titleholder, is entered as a seller.

Each sales contract has been prepared.

(d) Defendant AA’s transfer, etc. of the above shares from BB under a sales contract concluded with BB.

The purchase price of KRW 100 million was paid.

마. 원고 산하의 XXXXXXX은 DDD에게 위 각 지분매매에 관한 양도소득세

133,580,340 won (the due date for payment January 31, 2012), which includes additional tax as of the date for filing the instant lawsuit;

Although the amount in arrears of capital gains tax is imposed and notified 171,249,910 won, DD does not pay it.

In addition, the court below did not err.

바. XXXXXXX은 2013. 8. 12. DDD의 피고 CCC에 대한 매매대금채권

231,200,000 Won and Defendant AAA’s right to claim a refund of KRW 100,000,000, respectively.

The Defendants demanded collection from the Defendants, but the Defendants did not comply with this.

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff asserts as follows as the cause of the claim of this case.

DD in default of capital gains tax of KRW 171,249,910, shall be subject to this effect against Defendant CCC

There are 231,200,000 sales claims according to the share sales contract for dry Forest.D and D and D.

Defendant AAA may pay KRW 100,000 according to the share purchase agreement of the forest of this case entered into by BB

Since it received it on behalf of the seller and did not pay it to DDA, DDA is against Defendant AA.

A claim for refund of KRW 100 million for the above purchase price is filed by the Plaintiff pursuant to Article 41 of the National Tax Collection Act.

Inasmuch as a claim for the purchase price and a claim for the refund of the purchase price were seized and notified, the delinquent;

D on behalf of the Defendants on behalf of the Defendants, such performance may be sought by the Defendants on behalf of the Defendants on domestic affairs.

Even if the forest land of this case is a real estate held in title by Defendant AAD, it is a real estate held in trust by Defendant AAD.

As a contract title trust, Article 4 (2) proviso of the Act on the Registration of Real Estate under Actual Titleholder's Name shall apply.

DD, a title trustee, acquired ownership of the forest of this case, and the Defendants acquired the ownership of the forest of this case.

shall comply with such request.

B. Determination

Pursuant to the above facts, DD is entrusted by Defendant AA with the name of the Corporation.

The registration of transfer of shares in the forest of this case has been made, and the trust relationship is not a contract title trust but a contract title trust.

That is, the actual owner of the transferred land is subject to the disposition of capital gains tax.

Even if only a title trustee is not a title trustee, the tax authority that is only a third party is a special circumstance.

Unless otherwise, the registration of ownership transfer for the land concerned is trusted and subject to taxation accordingly.

Therefore, the capital gains tax is imposed on a person who is merely a title trustee on the registry.

Since the defect of taxation disposition cannot be deemed to be serious and clear, the above taxation disposition cannot be deemed null and void.

No. (see, e.g., Supreme Court Decision 97Nu13627, Nov. 28, 1997). The Plaintiff’s status as DD

The disposition imposing capital gains tax cannot be invalidated, however, the plaintiff's taxation claim against DD is invalid.

Even if recognized, the Plaintiff’s payment claim and each other against the Defendants on behalf of DD.

In order to collect the claim for the refund of the proceeds, DDR shall sell and purchase the purchase price bonds and sales to the Defendants.

There must be a claim to return the price. According to the above facts of recognition, DDR is against the defendants.

The Plaintiff cannot be deemed to hold a claim for the purchase price and a claim for the refund of the purchase price.

No claim against dismissal shall be accepted.

3. Conclusion

The plaintiff's claim against the defendants is without merit, and all of them are dismissed. It is so ordered as per Disposition.

this decision is rendered.