The entry in the registry of real estate has the presumption of right and is normally transferred because of the entry of the real estate sale price.

It is reasonable to regard that the registration ledger has the presumption of right, and that the real estate sale price is the real estate sale price, and that the title trust is subject to penalty or criminal punishment under the Act on the Registration of Real Estate under Actual Titleholder's Name.

Article 88 (Definition of Transfer) of Income Tax Act

2015Guhap1715 Revocation of Disposition of Imposing capital gains tax

friendly ○

○ Head of tax office

2017.04.25

2017.05.30

1. The plaintiff's claim is dismissed.

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

The disposition of imposition of capital gains tax of KRW 55,710,470 on an occasional basis of January 6, 2011 by the defendant of the Gu office against the plaintiff on January 6, 2015 shall be revoked.

1. Circumstances of dispositions;

A. On December 10, 201, the Plaintiff completed the registration of ownership transfer for the sale of ○○○○○○○○○○-dong, ○○○○○ apartment, ○○○○○○○○○○, ○○-dong, ○○○○ apartment (hereinafter “instant 1 real estate”). On August 19, 201, the Plaintiff completed the registration of ownership transfer for the reason of sale due to voluntary auction on the same day. On August 8, 201, the Plaintiff completed the registration of ownership transfer for the reason of sale on the grounds of August 8,

나. 원고는 2005. 7. 7. ☆☆시 ☆☆동 ☆☆ 주공아파트 ☆동 ☆☆호(이하 '이 사건 제2 부동산'이라 한다)에 관하여 같은 날 임의경매로 인한 매각을 원인으로 소유권이전등기를 마쳤고, 2011. 8. 31. 지AA에게 2011. 8. 30. 자 임의경매로 인한 매각을 원인으로 소유권이전등기를 경료하여 주었다.

C. On September 15, 2005, the Plaintiff completed the registration of ownership transfer on the grounds of the sale due to voluntary auction on the same day with respect to the △dong-dong, △dong-dong, △dong-dong (hereinafter referred to as the “third real estate”). On August 31, 201, the Plaintiff completed the registration of ownership transfer on the grounds of sale due to voluntary auction on August 30, 201.

D. On January 6, 2015, the Defendant imposed a disposition of KRW 55,710,470 on the Plaintiff regarding the instant real estate (hereinafter collectively referred to as “each of the instant real estate”) for the imposition of KRW 1 through 3 real estate (hereinafter referred to as “instant disposition”).

E. The Plaintiff appealed and filed an objection on April 23, 2015, but was dismissed on or around May 2015, and the Commissioner of the National Tax Service filed a request for examination on July 29, 2015, but was dismissed on September 23, 2015. [Grounds for Recognition] The Plaintiff did not dispute, as well as the entries in Gap evidence 1, 3, and Eul evidence 1, and the purport of the entire pleadings.

2. Relevant statutes;

It is as shown in the attached Form.

3. Issues of the instant case

The Plaintiff asserts that ① the instant real estate title trust was not subject to capital gains tax, and ② the imposition of capital gains tax is unlawful since the Plaintiff did not have any income accrued from the sale of the instant real estate Nos. 2 and 3. ③ The Plaintiff already paid the total amount of capital gains tax on August 8, 2014, and again levied capital gains tax again is illegal. Therefore, the issue of this case is whether there exists any defect as alleged by the Plaintiff in the instant disposition.

4. Determination as to whether the real estate No. 1 of this case was title trust

The plaintiff asserts that since the real estate No. 1 of this case was trusted in title to the Sung-tae Kim Jong-tae, the disposition imposing capital gains tax is unlawful.

In addition, in light of the overall purport of the pleadings, the facts that the Plaintiff transferred the ownership of the first real estate to Kim Jong-tae, a preliminary quality Kim on or around August 201, by taking account of the overall purport of the pleadings, are acknowledged. However, the above facts alone are insufficient to recognize that the above facts are title trust. According to the records in the register, there is sufficient presumption of right, and according to the evidence No. 3 (register), the real estate transaction price between the Plaintiff and Kim Jong-tae, entered in the register and the real estate transaction price between the Plaintiff and Kim Jong-tae, entered in the register as KRW 220,00,000, and the title trust asserted by the Plaintiff is subject to sanctions, such as penalty or criminal punishment, pursuant to the Act on the Registration of Real Estate under Actual Titleholder’s Name, it is reasonable to deem that the Defendant deemed that the instant real estate No. 1, as recorded in the register, was normally transferred to Kim Jong-tae, and thus, this part of the Plaintiff’s assertion is without merit.

5. Determination as to whether the imposition of capital gains tax on the sale of real estate Nos. 2 and 3 of this case is unlawful

The plaintiff asserted that the second and third real estate of this case were acquired by auction, and that the plaintiff did not actually obtain capital gains from the sale of real estate as it was disposed of by compulsory execution after being appropriated for the loan of 70% or more of the acquisition cost. Thus, the disposition imposing capital gains tax is unlawful.

Pursuant to Article 95 (1) of the Income Tax Act, capital gains shall be the amount obtained by deducting necessary expenses from the total amount of capital gains and deducting the special deduction for long-term holding from such amount.

However, even if the real estate Nos. 2 and 3 of this case was sold at a voluntary auction as alleged by the Plaintiff, it can be deemed that the Plaintiff acquired transfer income as long as the sale price was repaid to the Plaintiff’s obligation. According to Article 97(1) of the Income Tax Act and Article 163(1) of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 23588, Mar. 3, 2012), the loan interest and expenses claimed by the Plaintiff are not included in the necessary expenses to be deducted from the transfer price.

6. Determination as to whether the instant disposition was unlawful even though capital gains tax was already paid

On August 8, 2014, the Plaintiff confirmed that the total amount of capital gains tax imposed on the Plaintiff in the Seoul Special Self-Governing City of Do was KRW 38,777,490, and paid it in full, and asserts that it is improper to impose the capital gains tax for the year 201 again on the Plaintiff.

Considering the overall purport of the statements and arguments in Eul evidence Nos. 1 through 3 (including a branch number), the transfer income tax paid by the plaintiff on August 8, 2014 is imposed on four real estate, not each of the instant real estate, △△△△△△ Dong-dong, △△△△△△△ apartment, △△△△△△dong-dong, △△△△△△△△△, and thus, the mere fact alleged by the plaintiff does not constitute an unlawful disposition of this case. Accordingly, the plaintiff's assertion on

7. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.