Suwon District Court 201Guhap957 ( October 25, 2011)

early 209 middle 2254 ( December 02, 2010)

The disposition imposing global income tax is legitimate by deeming that the Plaintiff, who is engaged in real estate sales business, has not sold the unregistered property.

The plaintiff who operates real estate sales business seems to have transferred the land under the name of the first person after being entrusted with the transfer, and the second land is deemed to have not been sold, so the disposition imposing global income tax is legitimate.

2011Nu41788 Revocation of imposition of global income tax

Ansan

Head of Namyang District Tax Office

Suwon District Court Decision 2011Guhap957 Decided October 25, 2011

July 17, 2012

August 17, 2012

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 global income tax of 000 won for the year 2003, global income tax of 000 won for the year 2004, and global income tax of 000 won for the year 2005 shall be revoked by the Defendant on March 1, 2008.

Ⅰ global income tax;

Each entry of Gap evidence 1 to 5, Eul evidence 1 to 5 (including each number), and the whole purport of the pleadings, shall be acknowledged as follows.

[1]

The registration of ownership transfer was completed on March 31, 1998 in the name of GoAA with respect to the same Ri 8-6 large 725 square meters, the same Ri 8-2 large 595 square meters, the same Ri 8-3 large 584 square meters, the same Ri 8-4 large 106 square meters, the same Ri 8-7 large 8-7 large 100 square meters, and the same Ri 8-16 large 708 square meters (hereinafter referred to as "each land of this case") in the form of documents in the Gyeonggi-gu, Gyeonggi-do, which were owned by the Plaintiff.

0 Of the instant land No. 1, the share of 117/584 square meters in the same Ri 8-2 large 595 square meters, 117/584 square meters in the same Ri 8-3 large 584 square meters, and 117/584 square meters in the same Ri 8-1 large 691 square meters in the same Ri 8-3 large 584 square meters in the same Ri 8-3 large 584 square meters in the same Ri 117/584 square meters in the same Ri 8-4 large 584 square meters in the same Ri 8-6 large 725 square meters in the same Ri 8-6 large 725 square meters in the Republic of Korea (Ministry of Environment) on August 16, 2005, the share of 8-3 large 584 square meters in the same Ri 8-584 square meters in the same Ri 108-106 m208.

The registration of ownership transfer was completed on June 28, 2005 to the Republic of Korea (the Ministry of Environment) (the Ministry of Environment) on June 28, 2005 with respect to the 10-10,000 square meters in each document of Gyeonggi-gu, which was owned by the 0 XX head of XX PP mar, 595 square meters prior to 10-16, 10-13 square meters prior to 10-17, 90 square meters prior to 10-20, and 230 square meters prior to 10-20,000 square meters of each land (hereinafter referred to as the "second land of this case").

[2]

As a result of the tax investigation conducted with the Plaintiff from December 22, 2006 to April 23, 2007, the director of the regional tax office of Grade 0: (a) the Plaintiff engaged in the real estate sales business, while engaging in the real estate sales business, sold the land No. 1 to LeeB, etc.; and (b) the land No. 2 of this case sold the land to the Republic of Korea (the Ministry of Environment) without completing the registration of ownership transfer after the Plaintiff purchased from the non-party clan from the non-party clan; and (c) other than the land No. 1 and the land No. 2 of this case, the director of the regional tax office of Grade 0 sold the land No. 1 in title trust to MaE

0 Accordingly, on March 1, 2008, the Defendant imposed global income tax of KRW 000, global income tax of KRW 000, global income tax of KRW 000, global income tax of 2004, and KRW 000, global income tax of 2005 on the Plaintiff.

0. The Plaintiff, who is dissatisfied with the above disposition, filed an objection on June 16, 2008, and filed an appeal on April 24, 2009. During that process, the Plaintiff’s assertion on the 694m2 of forest land in XX 10-7 and 1 parcel, which was judged to have been trusted in title to E, was partially accepted, and the global income tax for the year 2004 was reduced to KRW 00 (hereinafter referred to as “the disposition of imposition of global income tax on March 1, 2008, which was partially reduced).

Ⅱ. The argument and judgment

1. Title trust;

A. The plaintiff's assertion

In order to reduce the loan interest and burden, the Plaintiff transferred the ownership of the instant land No. 1 to GoA on the condition that GoA shall repay the secured mortgage debt (creditorO credit safe, debtor’s wife FF, maximum debt amount, 000 won) established on the land of this case to GoA, not having held a title trust with GoA. Accordingly, the instant disposition on the ground of such title trust is unlawful.

B. Determination

(1) According to the evidence evidence Nos. 6, 18, and 19 regarding whether the Plaintiff sold the land of this case to high-A after title trust, the Plaintiff and high-A with respect to the land of this case, there is a sales contract in which the Plaintiff’s wife FF, which was established on the land of this case, intends to repay the obligor’s maximum debt amount of 000 won to high-A, and transfers ownership to high-A, and the Plaintiff and high-A, prepared a settlement agreement regarding the transfer of the land of this case on April 30, 2004, and paid 00 won out of the settlement agreement to high-A.

(2) However, the circumstances as follows are examined with regard to each of the statements in Eul evidence Nos. 6 to 11, 21, 22, 24, and 26.

① There is no evidence suggesting that, while entering into a sales contract for the purchase and sale of the instant land between the Plaintiff and the highA, the HighA paid interest on the secured obligation of the right to collateral security established on the said land by the HighA. There was no evidence suggesting that the HighA had paid the interest on the secured obligation of the right to collateral security, and the obligation did not have been

② From the end of 1996, GoA was an employee of the Plaintiff and applied for permission for mountainous district conversion and supervision of civil engineering works, and there was no special revenue except for monthly income. Therefore, it appears that the Plaintiff did not have sufficient means to pay interest on KRW 000 on the collateral collateral debt set out in the land of this case.

③ On March 7, 200, after the completion of the registration of ownership transfer in the name of GoA with respect to the land No. 1 of this case, the Plaintiff appears to have exercised the right as the owner of the land No. 1 of this case, such as setting up a maximum debt amount of KRW 000 on the land No. 1 of this case under the name of GoA and using it with loans.

④ At the time of entering into a contract with the Ministry of Environment for the sale and purchase of the instant land No. 1 with this BB, KimCC, SongD, and the Republic of Korea (Ministry of Environment), both the Plaintiff participated in the contract, and the Plaintiff was directly paid from each of the above buyers and used the purchase and sale price for the instant land No. 1.

⑤ The settlement agreement on the land No. 1 of this case signed on April 30, 2007 between the Plaintiff and GoA was made after the lapse of one year and six months from September 1, 2005 when the land No. 1 of this case was sold to the said B, etc., and it is difficult to believe that the Plaintiff and GoA was made after a tax investigation was conducted by the Plaintiff and GoA, and it is also difficult to believe that it was made. Moreover, it is difficult to agree to pay interest on the secured debt of the right to collateral security that GoA agreed to enter into a sales contract on the land No. 1 of this case, or to receive money from the Plaintiff even without taking over the debt.

(3) In full view of the above circumstances, the Plaintiff’s land No. 1 in this case is deemed to have held title trust with a high-A, but sold to this B, etc. Therefore, the Plaintiff’s assertion on this part is without merit.

2. An unregistered pre-sale;

A. The plaintiff's assertion

The Plaintiff purchased the instant land 2 and opened a cement package road of 4 meters wide, and entered into a conditional sales contract to invalidate a sales contract where the alteration of the form and quality of a site for the construction of a clan hall and sperm, civil engineering works, building permission, land category change, etc. are not attributable to the Plaintiff’s expense. The conditional sales contract shall be deemed the date of acquisition or transfer of the relevant assets. However, the conditional sales contract shall be deemed the date of conditional fulfillment, and the condition was not imposed because the Plaintiff did not obtain a building permit under the terms and conditions of the above sales contract, and thus, the Plaintiff did not acquire the instant land 2. Therefore, the instant disposition on the ground of such acquisition was unlawful

B. Determination

(1) According to the records as follows: (a) whether the Plaintiff acquired the land of this case from the non-party 2 from the non-party 1 to non-party 3; (b) the Plaintiff did not sell the said land; (c) the Plaintiff did not sell the said land of this case to the non-party 1 to the non-party 5 square meters; and (d) the Plaintiff did not sell the said land of this case to the non-party 2 to the non-party 1 to the non-party 5 square meters; and (e) the Plaintiff did not sell the said land of this case to the non-party 3 to the non-party 4 to the non-party 1 to the non-party 4 to the non-party 1 to the non-party 4 to the non-party 1 to the above 5-1 to the non-party 25-4 to the non-party 1 to the non-party 1 to the above 5-1 to the non-party 2 to the non-party 1 to the sale permit of the land of this case to the non-party 25 to the land.

(2) However, the term “transfer income” under the Income Tax Act refers to income generated from the transfer of assets, such as the ownership of land. The term “transfer income” refers to not only the ownership that completed the registration, but also the concept that includes the de facto ownership that leads to the extent that the compensatory benefit was almost all performed by social norms (see, e.g., Supreme Court Decision 92Nu8934, Apr. 27, 1993).

In addition, the circumstances in which evidence Nos. 12, 15 through 19, 27 through 31 was reviewed by considering the whole purport of the pleadings are as follows.

① The Plaintiff, including Nonparty 2’s land, concluded a sales contract with Nonparty 10 to 3,355 square meters, and paid all the sales amount to be paid. The Plaintiff’s obligations, such as road construction and change of form and quality, to be performed separately in relation to the above sales contract, are almost all performed except for construction permission.

② The building permit agreed upon by the Plaintiff to implement the above sales contract appears to be merely a part of the obligation to be performed by the Plaintiff, and did not impose restrictions on the time when the building permit was to be granted, and there is no evidence to deem that Nonparty clan returned the sale price received from the Plaintiff to its original state in accordance with the invalidation of the sale and purchase contract of land No. 2.

③ In the case of a conditional sales contract, the date of fulfillment of the conditions shall be deemed the time of transfer or acquisition, but only when the Plaintiff fulfilled all the obligations stipulated in the above sales contract, the above sales contract cannot be deemed to take effect, and it seems to be null and void if the Plaintiff fails to perform such obligations.

④ Since 1996, the Plaintiff continued to pay taxes, including the aggregate land tax on the land No. 2, and the Plaintiff and the non-party clan agreed to pay global income tax and other public charges due to the transfer of the land No. 2 to the Plaintiff and bear civil and criminal liability related to the sale and purchase of the land No. 2.

⑤ At the time of concluding a sales contract to sell the land No. 2 to the Ministry of Environment, the Plaintiff represented the non-party clan, and KRW 000 of the purchase price was immediately remitted to the Plaintiff’s account on the date of deposit to the account of the non-party clan HaH’s representative, and the Plaintiff used the purchase price, and it seems that the non-party clan did not lend it to the Plaintiff without the maturity of repayment and interest agreement.

(3) In full view of the above circumstances, it cannot be deemed that the non-party clan transferred the land of this case after the above sales contract between the plaintiff and the non-party clan becomes null and void, and it shall be deemed that the plaintiff acquired the land of this case 2 from the non-party clan in fact and then sold it again without registering it in the name of the plaintiff. Therefore, the plaintiff's assertion on this part is without merit.

III. Conclusion

Thus, the disposition of this case that the plaintiff operating real estate sales business transfers the land No. 1 of this case after the title trust, and imposed the comprehensive income tax on the plaintiff on the ground that the land No. 2 of this case has not been resold is lawful.

Therefore, the plaintiff's claim seeking the cancellation of the disposition of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just in its conclusion, and it is so decided as per Disposition by the plaintiff's appeal.