Gwangju District Court 201Guhap1429 ( December 22, 2011)

Cho High 2010 Gwangju 1678 (No. 21, 2011)

Since transfer income is recognized as the actual owner of transfer income, imposition of transfer income tax is legitimate.

In full view of the fact that the sale and purchase contract includes the seal affixed by the seller and the seal affixed thereto, the fact that the buyer is recognized to have received part of the amount paid as the purchase price, and the person claiming the actual owner is deemed to have operated the real estate brokerage office and arranged the sale and purchase contract, the plaintiff is recognized as the actual owner of the land.

Article 14 of the Framework Act on National Taxes

2012Nu88 Revocation of disposition of imposing capital gains tax, etc.

Park XX

Head of the tax office

Gwangju District Court Decision 2011Guhap1429 Decided December 22, 2011

May 17, 2012

May 31, 2012

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s disposition of imposition of capital gains tax of KRW 000 against the Plaintiff on December 1, 2009 shall be revoked.

2. Purport of appeal

The same shall apply to the order.

1. Details of the disposition;

A. On January 7, 2003, the Plaintiff submitted a transfer income tax base report stating that “On January 7, 2003, the Plaintiff acquired a 000 m2.9 m22 m2 (hereinafter “instant land”) from the Defendant at W 00 won, and transferred it as it is to YellowA on January 8, 2003.”

B. On March 27, 2007, the Yellow A submitted a transfer income tax base return stating that "after acquiring the instant land in 000 won on January 8, 2003, it transferred it to the Defendant at KRW 000 on February 15, 2007."

C. Accordingly, on December 1, 2009, the Defendant imposed KRW 000 on the Plaintiff on the ground that the transfer value of the instant land is KRW 000,000, different from the voluntary declaration amount (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an objection against the Defendant on December 23, 2009, but the Defendant dismissed it on February 11, 2010. The Plaintiff filed an appeal with the Tax Tribunal on May 20, 2010, but the Tax Tribunal dismissed it on January 21, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1, 4, Eul evidence 1 to 4 (including branch numbers for those with serial numbers) and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) The Plaintiff: (a) requested HoB who was known to the general public to purchase land in order to use it as a new site for the Moel construction; and (b) received 000 won as a down payment from HoB on December 20, 2001 by introducing the land in XX Dong at the time of leisure from HoB; and (c) reported MaB on December 20, 201.

(2) However, on December 21, 2001, JungB concluded a sales contract with the content that the instant land was sold in the name of the Plaintiff, not the land originally introduced to the Plaintiff.

(3) On June 2002, the Plaintiff requested the cancellation of the above sales contract because the land of this case was not only different from the land originally introduced from JungB, but also it was judged inappropriate as a newly constructed site for Mour. The Plaintiff offered a proposal to return the down payment amount of KRW 000 if he transfers the entire authority over the land of this case to himself. The Plaintiff accepted the proposal of JungB, and entered into a sales contract with the content that the right to sell the land of this case is transferred to JungB at KRW 00.

(4) The subsequent payment of KRW 000,000, out of the sales amount received from YellowA, after transferring the instant land to YellowA.

(5) Therefore, the instant transfer income is a transfer income accruing from the transfer of the instant land to YellowA as the owner’s position, and the person to whom the instant transfer income is attributed is determinedB. Therefore, the instant disposition is unlawful in violation of the substance over form principle.

B. Determination

(1) Article 14(1) of the Framework Act on National Taxes stipulates the principle of substantial taxation by stipulating that “If the ownership of income, profit, property, act, or transaction subject to taxation is merely nominal and there is a separate person to whom such income, profit, property, act, or transaction belongs, the person to whom such income actually belongs shall be liable to pay taxes.” The fact that the above ownership of income is merely nominal and it is a separate person to whom such income actually accrues has the burden of proof (see Supreme Court Decision 84Nu505, Dec. 11, 1984).

(2) In this case, the Plaintiff’s 0-B evidence Nos. 1, 6, 7-2, 6-7, 7-2, 7-2, 9-1, and 2-2 of the evidence Nos. 7, 8, 10, and 9-2 were paid to the Plaintiff on December 21, 2001 for the following reasons: (a) the Plaintiff’s purchase and sale contract for the instant land was concluded; (b) the Plaintiff paid 000 won to the Plaintiff on the date of the contract; and (c) the ownership transfer registration was completed on January 7, 2003 under the name of the Plaintiff for the remainder of 00-B; and (d) the Plaintiff paid 00-B money to the Plaintiff on January 8, 2003, the Plaintiff paid 00-B money to the Plaintiff for the purchase and sale of the instant land.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair, and the plaintiff's claim is dismissed. It is so decided as per Disposition.