Daejeon District Court-2015 Gudan-153 (2015.08)

Cho Jae-2014- Daejeon-4264 ( November 06, 2014)

According to the substance over form principle, taxation is legitimate to a trustee who is not a title truster.

According to the principle of substantial taxation, taxation is just and reasonable, and there is no ground for the plaintiff's assertion as to the violation of the duty of prior notice under the Administrative Procedures Act and the prohibition of double taxation.

Article 14 of the Framework Act on National Taxes

Daejeon High Court 2015Nu11910 Revocation of Disposition of Imposing capital gains tax

00

00. Head of tax office

on October 08, 2015

November 26, 2015

December 10, 2015

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance shall be revoked. The imposition of capital gains tax of KRW 186,791,230 against the plaintiff on July 1, 2014 by the defendant shall be revoked.

1. Quotation of judgment of the first instance;

The reasoning for this Court’s reasoning is as follows, except for adding the judgment as stipulated in Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act to the new argument of the Plaintiff at the trial. Thus, the reasoning for this Court’s reasoning is as follows.

2. Additional determination

A. As to the assertion of violation of the duty of prior notice under the underlying taxation principle and the Administrative Procedures Act

1) Summary of the Plaintiff’s assertion

In February 4, 2014, the phrase “pre-announcement of taxation” column of “pre-announcement of taxation (Evidence B No. 13) sent by the Defendant to the Plaintiff on February 4, 2014,” stating, “The following would be taxed depending on the source of ownership based on the revocation of fraudulent act” constitutes a violation of the taxation principle and the obligation of advance notice under the Administrative Procedures Act, since it did not notify the grounds for taxation, citing

2) Determination

In light of the following circumstances, Gap 1, 3 through 6, Eul 1 through 4, Eul 6-1, 2, Eul 7-2, and Eul 9 and 13-2, and the overall purport of the pleadings, i.e., the first 00 director of the tax office deemed that the plaintiff trusted the real estate of this case to kh under title trust, and kh acquired the real estate of this case (1,650,00,000) from hh on January 2, 2009, it is difficult to view that the plaintiff was subject to imposition of capital gains tax for 207 under the Administrative Procedures Act by changing the tax base of "No. 1,650,00,000,000 for 00,0000,000,000,000,000 won, 20,000 won, 20,000 won, 30,000,000 won.

Therefore, this part of the plaintiff's assertion is without merit.

B. As to the assertion of violation of the double taxation prohibition principle

1) Summary of the Plaintiff’s assertion

hn on January 2, 2004, after completing the registration of transfer of ownership on the instant real estate to kh on January 2, 2004, reported and paid the transfer income tax on the instant real estate on February 28, 2004, and the transfer income tax obligation of hn on the instant real estate has already expired by prescription. The instant disposition is a taxation on the tax obligation already paid or extinguished for the same subject of taxation, and thus contravenes the principle of prohibition of double taxation.

2) Determination

On the other hand, as alleged by the Plaintiff, there is no evidence to prove that hn reported and paid transfer income tax while transferring the instant real estate to kh, and whether the extinctive prescription of hn's right to collect national tax has expired can not affect the instant disposition against the Plaintiff, the title truster.

Therefore, the plaintiff's assertion on this part is without merit.

3. Conclusion

Thus, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance shall be concluded.

B. The Plaintiff’s appeal is justifiable as it is dismissed as it is without merit. It is so decided as per Disposition.

section 3.

December 11, 2015