A person liable to pay capital gains tax of this case under the substance over form principle

The plaintiff, as the private agenda of the Ma** the transfer registration of land was made to the Foundation ** the transfer registration was made to the Foundation due to donation,* this* the transfer registration of land was received in full, and the taxpayer of the transfer income tax of this case is the title truster.

Article 14 of the Framework Act on National Taxes

2013Guide 16916 Demanding revocation of taxation disposition

ZO

O Head of tax office

2014.02.07

2014.28

1. The Defendant’s disposition of imposition of capital gains tax of KRW 248,998,30 against the Plaintiff on September 3, 2013 is revoked.

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 June 8, 2004, the Plaintiff, under his own name, owns an OOO-dong OO-dong 255-1 1,212 m2 m2 (hereinafter “instant land”) and transferred the value to Nonparty O, made a preliminary return on the tax base of transfer income with the transfer value of KRW 256,00,000, and paid KRW 27,772,884 of transfer income tax.

B. On September 3, 2012, the Defendant issued the instant disposition that revised and notified the transfer income tax of KRW 248,998,300 (including penalty tax of KRW 13,063,509 and penalty tax of KRW 104,494,800) on the ground that the actual transfer value of the instant land was not KRW 256,00,000, the value reported by the Plaintiff, but is KRW 585,50,000, the value reported by the NewO.

C. On December 6, 2012, the Plaintiff filed an appeal with the Tax Tribunal, but was dismissed on May 15, 2013.

Facts that there is no dispute with recognition, entry of No. 1, purport of the whole pleading

2. Summary of the plaintiff's assertion

A. The actual transfer value of the instant land is KRW 256,00,000, as reported by the Plaintiff. KRW 585,500,000, which was stated by the NewO when it filed a transfer income tax base return, is the value indicated in the so-called business contract, not the actual transfer value. Therefore, the instant disposition is unlawful.

B. The actual owner of the instant land is NonpartyO, not the Plaintiff, and the actual transferor is the transferor.

The instant disposition that imposed capital gains tax on the Plaintiff is unlawful.

3. Whether the disposition is lawful;

Although title trust property is owned by a trustee, registration in the name of the trustee is null and void in violation of the Act on the Registration of Real Estate under Actual Titleholder's Name, and since the truster is in a position to de facto control, manage, and dispose of capital gains, the truster becomes a taxpayer of capital gains tax.

At the same time, the Plaintiff asserts that the transfer value, which is the premise for the instant disposition, is not KRW 585,50,000, but KRW 256,000,000, and at the same time, the actual transferor of the instant land is not the Plaintiff but O, and also claims that the actual transferor of the instant land is not the Plaintiff. If the actual transferor of the instant land is not the Plaintiff, it is not necessary to discuss how much the actual transfer value is, first, whether the actual transferor of the instant land was

(a) Facts of recognition;

1) From March 12, 1986 to March 12, 1986, the Plaintiff, as an organization of the OOO, served as an organization of the OO as from August 14, 200 to February 20, 205.

2) Around May 18, 2002, EOOO which was a member of the OOOO association acquired the instant land and the instant land from the OOOO university in KRW 255-3, 255-4, and 255-5 in KRW 1,435,00,00. In this case, the OO-255-4, 255-5 land will be donated to the OO-5 building site, and the 255-5 land, the land category of which is the site (site), shall be registered in the name of the OOOO-owned Maintenance Foundation, and the 255-4 land, the land category of which is the former land category, shall be registered in the name of the person designated by the OO-5-4.

3) In accordance with the above contract, EOO entered into the registration of transfer on November 15, 2002 with respect to the land of this case 255-4, and on July 22, 2003, in the name of the plaintiff who was under the jurisdiction of OO branch, each of the registration was completed under the name of EO branch. On July 22, 2003, EO branch entered into the registration of transfer on the land of this case 255-3 under the name of EO branch, and on November 15, 2002, EO was not registered under the name of EO branch, the farmland of this case was not located in the name of EO branch, and the registration of transfer was made under the name of the plaintiff.

4) As to the instant land under the Plaintiff’s name, OO-dong 255-4, 255-5 land, and O-O-255-3 land under the name of OO-O, joint collateral security was established on October 7, 2003, which consists of debtor O-O, maximum debt amount of KRW 1,495,00,000, and O-O savings bank.

5) With respect to the OO-dong 255-4 and 255-5 land registered in the name of the Plaintiff, the registration of transfer was made to the OOOOO Maintenance Foundation, a foundation, on October 13, 2006 pursuant to the above-mentioned donation agreement.

6) In addition, on June 8, 2004, OO transferred the instant land and 255-3 square meters remaining after being divided into the instant land and OOdong 255-3 land to OO or OO (the directors of OOCO Co., Ltd.) and received all the transfer proceeds.

Facts that there is no dispute over recognition, entry of A5's evidence 1 through 10, A7, and 8, testimony of EO for a witness, the purport of the whole pleadings.

B. Determination

The following circumstances revealed in relation to the above facts, i.e., ① the Plaintiff, as an agent of an OO church, transferred the land from OOOO university and donated to OOOOOO-4 and 255-5 to OOOOO-5; ② the joint collateral mortgage was established on the land of 3 parcels registered in the name of the Plaintiff and the land of O255-3 units registered in the name of OO-3 units; ③ the land of this case under the name of the Plaintiff and the land of O25-3 units in the name of OO units was transferred to OO and the director of OO units, and ④ the land of this case was transferred to the same transferee, ④ the purchase of the land of this case after the transfer of the land of this case under the name of OO units, and it is reasonable to view that the OO was fully paid to the Plaintiff.

Ultimately, under the principle of substantial taxation, a taxpayer of the transfer income tax of this case should be deemed to be a truster, but on a different premise, the Defendant’s disposition of this case, which the Plaintiff deemed as a taxpayer, should be revoked as unlawful, and as long as the Plaintiff is not a taxpayer, the Plaintiff’s actual transfer value of the land of this case should not be examined further.

4. Conclusion

Therefore, the plaintiff's claim is justified.