Cho High Court Decision 2009Du4309 (2010.06.01)

Where another person's land is transferred after sunset, a taxpayer of capital gains tax;

A person liable to pay capital gains tax shall have a person other than a real landowner, so long as the income is not fully returned to the landowner even if the ownership transfer registration of another person's land is null and void after its transfer.

The contents of the decision shall be the same as attached.

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1. The Defendant’s imposition of KRW 72,188,730 on September 1, 2009 against Plaintiff KimG, and the imposition of KRW 72,18,730 on November 1, 2009 against Plaintiff KimG, each of which was made against Plaintiff KimA on November 1, 209, shall be revoked.

2. The costs of the lawsuit are incidental to the defendant.

The same shall apply to the order.

쇠지지鹬 u3000

1. Details of the disposition;

A. Since their parents were 193. Around 193, 193, their parents were 2.2, their father, 2.00 square meters, 161-1,137 square meters (hereinafter “the instant 1 land”), 271 square meters (hereinafter “the instant 2 land”) prior to 163, 164-10, 734 square meters (hereinafter “the instant 3 land”), 3,845 square meters prior to 170, 170, 170-1, 170, 170-1, 170, 170, 170-1, 170, 170, 170-1, 294 square meters prior to 29, 170-1, 138, 2006, 176, 365 square meters prior to the instant 46.1, 206.

B. However, as the land of this case was incorporated into a public service project, on October 26, 2006, the sale and purchase contract was concluded between KimB and the Korea National Housing Corporation (the land of this case transferred to HanF on November 8, 2006 through consultation). KimB received 1,208,013,690 won from the sale and purchase price of this case, and reported and paid the transfer income tax on the expropriation of the land of this case 1 through 4 to the head of the Gu Tax Office on December 2006.

C. Meanwhile, on December 7, 2007, the plaintiffs filed a lawsuit against the KimB as the District Court 2007Gahap11047 on December 7, 2007, and the grounds for the claim are as follows.

"The land of this case was owned by KimCC and succeeded to the plaintiffs. The KimB, after completing the registration of transfer in the name of inheritance registration KimB with respect to the above land in the name of the plaintiffs, after the registration of transfer was made in succession to the above land in the name of the plaintiffs. In addition, KimB acquired KRW 1,208,013,690 for the land of this case 1 through 4. Accordingly, KimB had the obligation to register cancellation as to the land of this case to the plaintiffs, and to return unjust enrichment equivalent to the purchase price.

D. During the process of the above civil procedure, the plaintiffs and KimB divides half of the remaining properties except the land of this case 9 through 11 which were transferred to HanF, but the KimB agreed to adjust the property relationship in consideration of the price for raising support and school expenses until KimB reaches the full age of majority. Accordingly, on September 12, 2008, the KimB concluded that the procedure for cancelling the ownership transfer registration in the name of KimB, which was completed with respect to the land of this case 7 and 8 and paid one billion won to the plaintiffs.

E. After that, on September 19, 2009, KimB claimed for the refund of the capital gains tax that he originally reported and paid based on the above protocol of mediation to the head of the tax office of the Gu government office. The head of the Gu government office accepted a request for correction by KimB and refunded capital gains tax amounting to KRW 91,309,960 paid by KimB on February 20, 2009, and notified the Defendant of the taxation data on February 6, 2009.

F. Accordingly, on September 4, 2009, the defendant decided and notified the plaintiff KimG on November 11, 2009, the transfer income tax of 72,188,730 won for each of 2006 to the plaintiff KimG (hereinafter "each of the dispositions of this case").

G. The Plaintiffs appealed and filed an appeal with the Tax Tribunal on December 2, 2009, but received a decision to dismiss the appeal on June 1, 2010.

[Ground of Recognition] Unsatisfy, Gap evidence 1 to 7, Eul evidence 1 to 5 (including each number), the purport of the whole testimony of witness KimB

2. Whether the disposition is lawful;

A. The parties' assertion

(1) The plaintiffs

Since KimB transferred the land of this case to the Korea National Housing Corporation through consultation and received compensation, KimB is obligated to pay capital gains tax. The disposition of this case on the premise that the plaintiffs are the actual holders of capital gains tax on each of the above lands is unlawful.

(2) Defendant

Since the plaintiffs are the actual owners of each land above, they are obligated to pay capital gains tax in accordance with the substance over form principle under Article 14 of the Framework Act on National Taxes.

(b) Statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) According to Article 88(1) of the Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006), the term “transfer” means that an asset is actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of the asset. According to Article 14(1) of the Framework Act on National Taxes (amended by Act No. 8830 of Dec. 31, 2007), if there is only nominal ownership of income under the substance over form principle and there is another person who actually obtains such income, income tax shall be imposed on the person who actually obtains such income.

(2) In full view of the above facts, each of the instant lands is the land originally inherited by the Plaintiffs from KimCC, and since the ownership transfer registration completed by KimB is an invalid cause, the real owner at the time of transfer of the instant 1 through 4 land through consultation can be deemed the Plaintiffs.

However, regardless of who is the true owner, the sales contract that KimB entered into in consultation with the Korea National Housing Corporation is valid, and since KimB received KRW 1,208,013,690 from the purchase price, the transfer income shall be deemed to belong to KimB. The plaintiffs are the true owner of the above land, but the plaintiffs only have the right to claim the return of unjust enrichment equivalent to the purchase price against KimB, and thus cannot be deemed to belong to the transfer income.

After that, in light of the fact that on September 12, 2008, the mediation was concluded between the plaintiffs and KimB that "GB" received from the plaintiffs with respect to the land of this case 7.8 and that the procedure for cancelling the ownership transfer registration was implemented and the payment of KRW 1.00 billion was implemented, and although KimB appears to have implemented the above mediation provision, the above mediation provision is that the land remaining in the name of KimB and the purchase price received by KimB should be returned only part of the purchase price received by the Korea National Housing Corporation, it cannot be deemed that the above mediation provision was implemented, and that the whole purchase price received by KimB from the Korea National Housing Corporation was returned to the plaintiffs.

Therefore, the instant disposition imposing capital gains tax on the Plaintiffs on deeming that capital gains from the land of this case 1 through 4 actually belonged to the Plaintiffs is unlawful.

3. Conclusion

Therefore, the plaintiffs' claims are with merit, and it is decided as per Disposition by admitting them.