early 2010 Heavy0417 (20 April 20, 2010)

Whether it constitutes a title trust real estate

Although it is alleged that the title trust land is not transferred due to the restoration of the title trust land, it is difficult to determine whether the property submitted solely by a deed signed by a private person is nominal trust, and the transfer income tax is reported based on the initial transfer, and there is no fact

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of capital gains tax of KRW 42,351,970 for the Plaintiff on April 13, 2009 shall be revoked.

1. Details of disposition;

A. The Plaintiff completed the registration of transfer of shares of 330.58/1023, the shares of Han-dong, Gangnam-gu, Seoul (hereinafter “the instant real property”), among the 91-1 Miscellaneous land of 858 square meters (hereinafter “the instant real property”), due to the inheritance by an agreement division as of November 11, 1994. On November 14, 2007, the Plaintiff completed the registration of transfer of shares of 110.743/1023 of the Plaintiff’s shares (hereinafter “the instant shares”) on November 5, 2007 (hereinafter “the instant transfer”).

B. In filing a preliminary return on the tax base of capital gains tax on January 31, 2008, the Plaintiff reported and paid KRW 9,34,090, which applied the general tax rate by deeming the instant real estate as falling under “land not deemed land for non-business use due to unavoidable reasons” under Article 168-14(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 20618, Feb. 22, 2008).

C. On April 13, 2009, in order to regard the instant real estate as land for business, the Defendant: (a) was a land, the use of which was restricted after the acquisition of the land; (b) however, since August 25, 1972, the said real estate was prior to its acquisition, and was designated as a development restriction zone and limited to its use; and (c) was subject to the instant disposition of imposition, which corrected and notified capital gains tax of KRW 42,351,970 for the year 2007 by applying the heavy taxation

D. The Plaintiff filed an appeal on January 14, 2010 after filing an objection on July 5, 2009, but the said appeal was dismissed on April 20, 2010.

[Ground of recognition] Facts without dispute, Gap evidence 1, 5 evidence, Eul evidence 1-1, 2, 3, Eul evidence 2, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

Of the instant real estate, the Plaintiff’s share was inherited to Korea-A, and Korea-A was decided to jointly purchase the said real estate with Seocho, DuDD, and E, but the UB was decided to invest in Korea-B instead of DoD. Under the title trust agreement between DoD and Korea-AA, the transfer of the instant real estate to UB was made under the name of Korea-AA, and the instant transfer to UB was made on the ground of termination of title trust. Therefore, it was unlawful for the Defendant to deem the instant transfer to be a transfer of the real estate subject to capital gains tax.

B. Determination

1) On the ground of termination of title trust, the registration of transfer of equity interest made by the heir of the real estate title trustee does not constitute the transfer of real estate subject to capital gains tax (see, e.g., Supreme Court Decision 90Nu9872, May 14, 1991).

2) According to the evidence Nos. 2-2 and 3-2, the following facts may be acknowledged:

A) On May 24, 1989, the transfer registration under the name of ParkF (165.29/1023 shares) and Han (330.58/1023 shares) was made with respect to a part of the real estate in this case. In the certificate of deed signed by a private person (a notary public on August 8, 1989.) signed by the headG, SeoCC, and HanA, the certificate signed by a private person (a notary public on the same date. 8. 1989. 330.58/1023 (100 square), and 115.29/1023 (50 square meters) among the real estate in this case, the headG purchased shares of 2/4 shares, and the title truster, Park F and Han-A, a registered titleholder, respectively, with respect to the share in this case’s real estate on June 20, 196.

B) The confirmation document prepared by the UB on January 2010, stating that “The instant real estate was to be jointly invested by CC, KoreaA, and headG three persons, and due to the circumstance, UB decided to make an investment by the headG, as the headG could not acquire, and that the joint investment was made on May 1, 1985, and the name was to be Han and the joint distribution was made after the sale.” The following is that the Plaintiff, upon the death of KoreaA, was aware that the instant real estate was inherited, was acquired by MaB around June 2007, while having known that it was inherited.”

3) In full view of the above facts in the instant case and the following circumstances recognized by the testimony of Gap, witnessB, and headG, the title truster of the instant shares cannot be deemed to have entered into a nominal trust agreement with Han as the representative of the headG-basedB, and other witnessB and headGG’s testimony are difficult or insufficient, and there is no other evidence to acknowledge otherwise.

A) The name of the BB in the deed signed by the said private person does not appear, and there is no evidence to prove the monetary transaction, etc. related to the instant real estate between the headG and the UB, and even if there was any money transaction between the headG and the UB, there is no evidence to view the BB as the agent of the headG reasonsB in relation to the AA, even if there was any money transaction between the headG and

B) A certificate in the name of the BB was prepared after the instant disposition was taken, and even based on the written confirmation, the BB was jointly invested on May 1, 1985, but the later written certificate in the certificate signed by the private person signed on August 8, 1989 still has the name of the BG;

(C) HanA shares are 330.58/1023; among them, if the shares are 2/4, the shares should have been transferred 165.29/1023 shares (50 when assumed that the shares of HanA are 100), but the shares were not completed only 110.734/1023 shares (3.5 when assumed that the shares of HanA are 100), and there is no reasonable explanation about them;

D) The Plaintiff alleged that it was a transfer on the ground of termination of title trust and reported and paid KRW 9,344,090 upon filing a preliminary return of capital gains tax;

E) On October 5, 2010, the witnessB testimony revealed that there was a notarial deed signed by a private person even if it was based on the witness B’s testimony, and there is no trace that the BB exercises its right as a right holder with respect to the instant real estate until the lapse of 20 years from the date of joint investment in 1985 and the date of registration in 1989, and therefore it is difficult to view it as an ordinary owner’s act;

F) According to the witness testimony of the witness headGG, the headG decided to make a joint investment, and 2/4 (50 when assumed that 100 shares of Korea-AAA) shares listed in the deed signed by a private person are combined with the original statement that the relevant BG made an investment in behalf of the headG (37.5 when assumed that 100 shares of Korea-AA), and that the statement is inconsistent with the original statement that the relevant BB made an investment in behalf of the headG (or that these statements were made after the Defendant’s assertion that 3.50,000 shares were received from the Plaintiff, the heir of Korea-AA, even though 20 shares correspond to the above 50 shares, and that the above 33.5 and 37.5's shares were insignificant in the above 3.5 and 37.5's shares were doubtful, it is doubtful that there is no possibility to exclude the credibility of the statement made by the Defendant to resolve the Defendant's objection to the Defendant's intellectual property).

4) Therefore, the Plaintiff’s assertion that the transfer of this case was due to the termination of title trust on the premise that the title trust agreement was established between Korea and the Plaintiff, who was directly transferred the instant shares from Korea and its heir, was lawful to deem the instant real estate as non-business land as the circumstances surrounding the disposition as seen earlier.

3. Conclusion

Thus, the plaintiff's claim of this case is dismissed for reasons.