Cho Jae-2018-China-0811 (2018.02)

Whether the actual owner of the land of this case is not the plaintiff

The actual owner of the land of this case is highly likely to not be the plaintiff, and the acquisitor can also be viewed differently, and it is not sufficient to recognize the fact that the plaintiff transferred the land, and there is no other evidence

Article 88 of the Income Tax Act;

2018Gudan8737 Revocation of Disposition of Imposing capital gains tax

Gangwon A

Cz superintendent of the tax office

May 1, 2019

May 29, 2019

1. The Defendant’s disposition of imposition of KRW O,654,430 (including additional taxes) of capital gains tax for the year 2016, which the Plaintiff rendered on July 10, 2017, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On June 25, 2003, AAA Co., Ltd. (hereinafter referred to as the "sale company") entered into a contract with the joint purchaser to sell a building on the same Ri 38-1, such as 00-3, X-3, 1448 square meters in X-ri, X-3, and 17.3 billion won in sales amount, including 00-3,000 square meters in X-3, X-1, and entered into a contract to sell the building on the same Ri 38-1, such as 17.3 billion won in sales amount. Before the due date, Article 11 of the contract (Evidence No. 7), stating that the joint purchaser should prepare an additional contract upon the request of the joint purchaser by specifying not more than 10 persons prior to the due date.

B. ParkA recruited investors for the purpose of raising the purchase price to be paid to the selling company. This was an investor of this type B in his/her name. On September 25, 2013, ParkA sold approximately 500 square meters of X-3 forest land of X-ri, X-3 forest land of 00-448 square meters in 2.4 billion won in 2.4 billion won in 2. In special terms, ParkA prepared a sales contract (Evidence A 4) stating that the business of the selling company shall be delegated to Park, KimA, HongBA, RedBA, and NewA, and separately prepared a sales contract (Evidence A 9) stating that the buyer shall be entrusted to thisA, and the purchase price shall be KRW 2.82 billion in 200,000 in 200,000,000 for the date of preparation.

C. On June 25, 2003, a seller drafted a sales contract (No. 7) on June 25, 2003, in which 12 persons, including BB, were the buyer, and most of the terms and conditions of the sales contract are the same as those set forth in BB, and on January 15, 2004, the seller completed the registration of ownership transfer on shares of 1653/148 out of X-ri 00-3 forest land in XX, X-3 forest land, 14,448 square meters.

D. On July 5, 2004, the above 00-3 forest land was converted into registration in X0-3, x0-3, and was subdivided into 00-3 forest land 1,572 square meters in the same Ri as the partition of co-owned property, 38-4 forest land 648 square meters in the same Ri, 00-5 forest land 12,228 square meters in the same Ri. The above partition of co-owned property as above 00-3 forest land and 1,572 square meters in the above partition of co-owned property and 1806/148 square meters in the above 00-5 forest and 00-5 forest and 228 square meters in the above partition of co-owned property (hereinafter referred to as "the land in this case").

E. On December 27, 2006, the Plaintiff created the right to collateral security (hereinafter referred to as the “mortgage first priority security”) with respect to the instant land as the Plaintiff, the mortgagee as the Plaintiff, and the Livestock Industry Cooperatives, and the maximum debt amount of KRW 1.5 million (85 billion in actual collateral amount). On February 20, 2008, the Plaintiff created an additional collateral security (hereinafter referred to as the “mortgage second priority security”) with the maximum debt amount of KRW 450 million (the actual collateral amount of KRW 350 million in actual collateral amount).

F. On October 15, 2008, on the land of this case, the registration of ownership transfer was made under the name ofCC General Construction Co., Ltd. (hereinafter referred to as "Non-Party Co., Ltd."), and on September 19, 2008, the non-party Co., Ltd. entered into negotiations with the Plaintiff and AA for the sale and purchase of the land of this case, and the non-party Co., Ltd is the owner of the land of this case, and the loans granted under the first and second collateral mortgage of this case shall also be borne by thisA, but the Plaintiff became the debtor of this case and the non-party collateral mortgage of this case for the collection of the investment amount, and the non-party Co., Ltd became unable to pay interest on the secured debt of this case Nos. 1 and second collateral mortgage of this case, and upon the Plaintiff’s request, the agreement was entered into with the Plaintiff as the actual owner of the land of this case (hereinafter referred to as the "agreement of this case").

G. On November 14, 2008, the provisional attachment registration for the land of this case was completed by the creditor of the non-party company, and on May 6, 2009, the plaintiff obtained a written consent (No. 4, hereinafter referred to as the "written consent of this case") from the non-party company to the effect that the plaintiff would indicate the seller (the actual owner) as the plaintiff and to fully consent to the act of taking provisional disposition, such as provisional disposition," and that the plaintiff would obtain a written consent (No. 4, hereinafter referred to as the "written consent of this case") from the non-party company to the effect that the plaintiff would be the actual owner of the land of this case, and the claim for cancellation of the ownership transfer registration on the ground of non-party company's failure to perform the contract (hereinafter referred to as the "written provisional disposition"). On August 28, 2009, the ownership transfer registration of the non-party company was cancelled

H. On January 4, 2016, this B transferred the instant land to DD Development Co., Ltd. with KRW 1.54 billion, and filed a preliminary return of capital gains tax of KRW 2.4 billion in acquisition value, KRW 1.54 billion in transfer value. The Defendant rendered a provisional return of capital gains tax on April 29, 2009, based on the Plaintiff’s written application for provisional disposition of prohibition of disposition filed with DD Development District Court on April 29, 2009, the agreement of this case, and the agreement of this case, on which the Plaintiff was the actual owner of the instant land, on which the Plaintiff acquired the instant land without registration from DD Development Co., Ltd on December 27, 2006, which was at the time of the Plaintiff’s creation of the first collateral mortgage, and subsequently sold the instant land to DD Development Co., Ltd on January 4, 2016, the Plaintiff rendered a decision of KRW 68,654,630 (hereinafter “additional tax”).

(i) The Plaintiff appealed and filed an objection on October 10, 2017, but was dismissed on December 28, 2017, and filed an appeal on January 3, 2018, but was dismissed on July 2, 2018.

[Ground of Recognition] Facts without dispute, Gap's statements in Gap's 1, 2, 4, 5, 7, 8, 17, 21, 22, 23, 31, 34, Eul's statements in evidence Nos. 1 through 5, 7, and 10, witness AA and HongB's testimony and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

The actual owner of the instant land is thisA, and even though the Plaintiff is not the actual owner of the instant land, it is unlawful for the Defendant to take the instant disposition against the Plaintiff.

B. Determination

1) The facts acknowledged earlier, in particular, the fact that the Plaintiff is the debtor of the instant mortgage Nos. 1 and 2, the agreement and written consent of the instant land entered as the actual owner of the instant land in the agreement and written consent, and the fact that the Plaintiff could be known from the fact that the Plaintiff was in receipt of the instant provisional disposition order by asserting that the Plaintiff is the actual owner of the instant land, or recognized by the evidence Nos. 7, 8, and 9, the possibility that the Plaintiff transferred the instant land to DD Development Co., Ltd. as the owner of the instant land is not completely excluded.

A) From among the real estate sold by the selling company to 12 persons, including BB, the sales amount of 00-3 forest land X-ri 00-3 forest land X-ri 14,448 square meters is KRW 1,653 square meters. Since the area of the land purchased by this B is 1,653 square meters, the above sales amount is KRW 414,508,513 square meters by multiplying the above sales amount by 1,653/14,448 square meters, which is the ratio of the size of the land. Since this amount is almost identical to 414,60,000 won of the purchase price of this BB stated by LA, the above statement made by LA is deemed to have high credibility.

B) Accordingly, as alleged by the Defendant, there is room to view that the money loaned by the Plaintiff through the first place mortgage of this case (hereinafter “the first loan of this case”) is the purchase price of the land of this case.

C) The Plaintiff asserted that the creditor of the non-party company was subject to the provisional disposition order of this case in the name of the Plaintiff on the grounds that the creditor of the non-party company had completed the provisional disposition registration of this case on the land of this case. However, it is doubtful whether the provisional disposition order of this case was urgent in the name of the Plaintiff on May 6, 2009 on the ground that the registration of provisional seizure was completed on November 14, 2008, and the registration of provisional seizure executed by Hana was completed on February 20, 2009. The provisional disposition order of this case was issued on May 6, 2009.

D) In the instant court, thisA testified that it was the actual owner of the instant land, and the Plaintiff merely testified that it was not the owner of the instant land, but the investor status of the instant land transaction. However, the Plaintiff stated that “AB was in the Republic of Korea and was not directly issued the BB’s certificate of personal seal impression (issuance).” Although the time when BB was in the Republic of Korea is apparent, it is difficult to believe that it was issued the BB’s certificate of personal seal impression (issuance).

2) However, according to the following facts or circumstances that are acknowledged by the aforementioned evidence and evidence, Gap's evidence and evidence Nos. 3, 6, 12 through 16, 18, 19, 20, 24 through 30, and 35, witness A and HongB's testimony, and the overall purport of oral argument, it is not enough to acknowledge that the plaintiff transferred the instant land to DD Development Co., Ltd. as the actual owner of the instant land. The above evidence and evidence Nos. 1 through 10 alone are insufficient to support the fact that the plaintiff transferred the instant land to DD Development Co., Ltd. as the actual owner of the instant land, and there is no other evidence to support it. Thus, the plaintiff's assertion is reasonable.

A) The Defendant asserted that the Plaintiff acquired the real ownership of the instant land with the instant loan No. 1. However, after the creation of the instant first collateral mortgage, this case’s loan extended 60 million won to 12 times from January 26, 2007 to August 27, 2008 on a total of 61 million won from January 26, 2007 to 61 million won from August 27, 2008, and the loan of KRW 350 million based on the instant second collateral collateral mortgage was made by the Muss passbook. However, if the Plaintiff acquired the real ownership of the instant land at the time of the establishment of the instant first collateral collateral mortgage, the said Muss passbook should have been used by the Plaintiff, but this case’s loan was made to 050 million won from February 22, 2008 to 050, 2006 to 300.16.208.65 billion won from 200,708.16.

In light of the circumstances such as that thisA paid KRW 18,00,000 to thisB on March 10, 2008, KRW 10,000,000 to Kim JH on March 10, 2008, KRW 100,000 to New JN on April 10, 2008, KRW 20,500,000 to New JN on April 10, 2008, and KRW 20,50,000 to Kim mal and ○○ Certified Co., Ltd. on April 18, 2008, and this part of thisA deposits KRW 90,00,00 again, the above argument by the Defendant is not persuasive.

B) Although the sales contract prepared between the selling company and the 12 persons, including the ParkB, including the instant land, entered the sales price of the instant land in KRW 414,60,000,00, the Defendant also recognized that the Plaintiff was not eligible for purchaser, the Plaintiff appears not to have participated in the determination of the sales price, and if the market price of the instant land was equivalent to KRW 414,60,000,000, around 2003, the Plaintiff could not receive a loan of KRW 1.2 billion from the financial company by means of the instant first and second collateral mortgage, and thus, it is difficult to deem that the Plaintiff actually received a transfer of the instant land by making a loan of KRW 850,00,000,000 as the sales price at the time of the establishment of the instant first collateral mortgage.

C) On May 25, 2009, after the agreement and written consent of this case were made, thisA and this BB sent to the non-party company a letter verifying that the non-party company did not yet accept KRW 1.2 billion of the secured debt amount of the first and second collateral mortgage of this case, and that the non-party company did not immediately pay KRW 1.3 billion of the remainder 1.3 billion of the remainder 1.3 billion of the remainder, and thus, it cannot be regarded as deceiving the non-party company. The non-party company still did not exercise its right as the owner of the land of this case. Meanwhile, on June 1, 2009, the non-party company agreed that the secured debt amount of the first and second collateral mortgage of this case was to bear KRW 50 million until the principal is repaid, and the non-party company did not immediately pay the remainder of the ownership of this case to the non-party company 1.3 billion of the remainder 1.3 billion of the transfer of the ownership of this case.

D) The RedB, at the time of negotiations for the purchase of the instant land by the Nonparty Company, was involved in the purchase of the instant land by the Plaintiff, since the Plaintiff invested in the real estate transaction in thisA but failed to recover the investment amount. The actual owner of the instant land or the person who is obligated to actually bear the debt of the instant loan 1, was aware of thisA.

3. Conclusion

Therefore, the plaintiff's claim is based, and it is so accepted and decided as per Disposition.