National High Court Decision 2007west 1866 ( October 31, 2008)

not recognized as the name name of the construction company

However, it is difficult to recognize that only the name of the land and building was lent for the convenience of the construction company's loan upon the request of the same student, and that the plaintiff actually acquired the land from the construction company and ordered the new construction of the building.

208Guhap18410 global income and revocation of disposition

Shin XX

O Head of tax office

June 26, 2009

October 16, 2009

1. The plaintiff's claim is dismissed.

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

Defendant’s global income tax for the Plaintiff on January 8, 2007 82,728,890, 2003

Each disposition of KRW 256,952,510 on global income tax belonging to it shall be revoked.

1. Details of the disposition;

The following facts are not disputed between the parties, or may be acknowledged by adding the whole purport of the pleadings to each entry in Gap evidence (including numbers), Gap evidence 1, Eul evidence, Eul evidence, Eul evidence, Eul evidence 1, Eul evidence, Eul evidence, Eul evidence 2, Eul evidence, Eul evidence, and Eul evidence 4:

A. On March 13, 2002, the Plaintiff, a representative director, acquired 560-1 m2 in Daegu-Gu, Daegu-dong, 200-1 m2 and divided into 6 lots. On October 18, 2002, the Plaintiff: (a) transferred the same 560-1 m2 in land to 330 million won; (b) each of the 560-3 m2 in land among the land after division to the Plaintiff; and (c) filed a report on corporate tax for 2002 and 2003m2 inasmuch as the 560-1 m2 in land among the land was transferred to the Plaintiff, and at the same time, the 560-3 m2 in land was transferred to 330 million won in land; and (d) each of the 11100 million m2 in land was completed on December 2003.

B. As a result of conducting a tax investigation on GATT construction, the director of the Nam Daegu District Tax Office: (a) transferred the above land to the Plaintiff at a price lower than the market price; (b) provided construction services for each of the above complexes; and (c) deemed that it constitutes a wrongful calculation, Article 52 of the former Corporate Tax Act (amended by Act No. 8831, Dec. 31, 2007; hereinafter “former Act”); and (d) Article 88 subparag. 1, subparag. 3, 6, and Article 89 of the former Enforcement Decree of Corporate Tax Act (amended by Presidential Decree No. 18706, Feb. 19, 2005); and (b) notified the Defendant of the taxation data on the Plaintiff.

C. Under Article 106(1)(d) of the former Act, the Defendant deemed that the difference between the market price and the Plaintiff constituted other income accrued to the Plaintiff. On January 8, 2007, the Defendant imposed a disposition of global income tax of KRW 174,062,90, and global income tax of KRW 543,998,760 for the year 2002 (hereinafter “instant disposition”) on the Plaintiff.

D. As a result of the Plaintiff’s request for adjudgment against the Director of the National Tax Tribunal upon filing a complaint, the part corresponding to the construction services of the land 560-1 of the same 560-1 and its ground telecom, which was originally corrected and excluded from the tax base, the Defendant corrected the tax base against the Plaintiff by reducing the global income tax rate of KRW 82,728,890, the global income tax rate of KRW 256,952,52,510 for the year 2002, limited to the construction services of the land and its ground telecomher (hereinafter “instant land” and “instant building”) in the order of 560-3 and its ground telecomher (hereinafter “instant land”).

2. Related statutes;

It is as shown in the attached Table related statutes.

3. Whether the disposition is lawful;

A. The plaintiff's assertion

The Plaintiff asserted that the disposition of this case, upon the request of the ASEAN, the Plaintiff, only lent only the name of the owner of the land of this case and the name of the owner of the building of this case in XX for the convenience of lending XX construction, was unlawful against the principle of substantial taxation, since the Plaintiff was the actual owner of the building of this case by acquiring the land and the building of this case from XX after the construction of this case, and that the disposition of this case, the whole of which the Plaintiff, other than the BB, was attributed to the Plaintiff, was unlawful.

B. Determination

(1) Murder, the aforementioned evidence, A4, A5, A6, A7, A8, and A9

In full view of the following circumstances, the evidence No. 10, A13, A14, A17, A17, A18, A19, A19 (excluding A19-2), A21, A21, B-6, B-7, B-8, B-9, B-9, A-10, B-11, 12, 13, and 13, and the fact-finding results with respect to the head of the NF branch office of the AFF branch office of this court, it is reasonable to view that the Plaintiff actually acquired the land of this case from AF and ordered the construction of the building of this case, as well as the construction of the new building of this case.

(A) GATT construction was commenced after obtaining a building permit for the instant building on May 16, 2002. On October 18, 2002, 2002, the Plaintiff sold the instant land and entered into a contract with the Plaintiff to receive a contract for the construction of the instant building as well as for the construction of the instant building. Moreover, the instant construction completed the registration of transfer of ownership on the instant land on October 25, 2002, selling the name of the owner on October 23, 2002, and on November 25, 2002, sold the instant land to the Plaintiff and paid KRW 122,700,000 to the instant construction after receiving a loan from the financial exchange as security by the Plaintiff. Accordingly, the relevant construction was issued with the Plaintiff as the recipient of the instant land, and the Plaintiff filed a tax invoice for the provision of the construction services and received the value-added tax thereon.

(B) On September 9, 2003, the Plaintiff entered into a contract with the instant land to comprehensively transfer the rights and obligations under the contract between XX Construction with the instant land, and completed the change of the name of the owner on September 27, 2003. After obtaining approval for the use of the instant building on December 4, 2003, the Plaintiff sold the instant land to the Plaintiff on December 15, 2003, and completed the registration for ownership transfer under the sales contract and the registration for ownership transfer on the instant building, which was signed by the Plaintiff as of September 22, 2003.

(C) According to the reasons for appeal on March 2006, subject to the imposition of corporate tax after the tax investigation, around 2006, at the time of the request for adjudication, the XX Construction did not appear on the ground of the reasons that the PP Construction made a physical sale of investors on the condition that it would be ordered to enact the Act on the Prevention of Commercial Sex Acts and Protection, etc. of Victims, etc. after dividing the land before division, and recommended the Plaintiff to provide convenience such as lending brokerage, etc., and to make an investment under the condition that one parcel of land and its ground, out of the subject matter of the sale and purchase, can be collected from the early sale of the land, etc., and at the same time sold the land, etc. and received the payment from the Plaintiff as security for the land, etc., and the price was paid by the Plaintiff. The Plaintiff first sold the land and building of this case to the Plaintiff before the implementation of the investment collection agreement, and the Plaintiff transferred the money borrowed to the Plaintiff at the time to the her husband’s account and attached the BB certificate of personal seal impression.

(D) On February 2007, the Plaintiff: (a) acknowledged the fact that at the time of filing an objection, the Plaintiff acquired the land of Daegu-gu XXdong 560-1 and contracted the construction of the ground telecom; (b) claimed that the Plaintiff prepared the above contract on the sale of the instant land by stealing the seal impression kept by the Plaintiff at the time of transfer; and (c) on May 2007, the Plaintiff asserted that the contract was prepared in accordance with the title trust agreement between XX and the construction after filing an objection.

(E) The Plaintiff’s agreement obtained by the Defendant at the time of the tax investigation, stating the purport of the title trust agreement between XX Construction, the confirmation of the title trust agreement, and the written reply, submitted by the director of the tax office at the time of the request for adjudication on the imposition of corporate tax under XX Construction, based on each of the above documents, to recognize the title trust. However, the date of the preparation of the above agreement is October 15, 2002, prior to the preparation of the above agreement, and the Plaintiff’s seal impression is affixed thereon. On the other hand, the Plaintiff’s seal impression is affixed to the agreement, the documents prepared by the Plaintiff from △△△ Bank, and the written agreement made with △△ Bank after receiving a loan from the Plaintiff’s seal impression, etc. In light of the fact that the Plaintiff’s seal impression is affixed, it is doubtful that the authenticity is high. Moreover, if the above written confirmation was made during the tax investigation period, and the above written reply cannot be deemed as evidence to have raised the value of the Plaintiff’s remaining after the submission of the above written reply.

(F) The Plaintiff’s assertion that: (a) the Plaintiff did not enter into the relevant construction agreement or the construction agreement; (b) there was no payment for the construction cost under XX 200 million won; and (c) there was no payment for the Plaintiff. However, as seen earlier, it is reasonable to deem that there was a contract for construction work between the Plaintiff and the Plaintiff, and that there was no payment for the Plaintiff; and (b) KRW 122.7 billion paid for the instant land by taking out the instant land as security for the instant construction; and (c) the developments leading up to the payment of KRW 200 million as revealed based on the data under Article XX 20 million; and (d) this was the transfer of the instant land and building by the Plaintiff and the Plaintiff received the instant land and the Plaintiff from the National Agricultural Cooperative Federation, etc. as security, and the Plaintiff cancelled all the Plaintiff’s existing obligations with the Plaintiff’s creation of a mortgage that became the debtor. In light of the above, it is difficult to see that it was made instead of payment.

(2) The instant disposition made by the Defendant to the same purport is lawful.

4. Conclusion

Therefore, the plaintiff's claim is dismissed.