Cho High Court Decision 201Do0423 ( October 13, 2011)

The acquisition of a corporation dissolved and registered for the evasion of capital gains tax shall be entered as a formal party to the transfer of land.

In light of the fact that the corporation whose dissolution has been registered, entered into a sales contract on the date of registration as the representative director, and that there was no business activity other than the purchase and sale of the land in this case, the corporation shall be deemed to have taken over the registered corporation and entered as the formal party in order to avoid capital gains tax in this case.

2011Gudan16264 Revocation of Disposition of Imposing capital gains tax

Lee Dong-A et al.

Head of Sejong District Tax Office et al.

November 30, 2011

December 28, 2011

1. The plaintiffs' claims against the defendants are all dismissed.

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

"The imposition of the capital gains tax for the year 2006, 26, 570, and 340 on December 1, 2010 by the head of the defendant Jong-ro Tax Office is revoked on December 1, 201."

1. Details of the disposition;

A. On November 7, 2003, the plaintiffs acquired 1/2 shares of the land (hereinafter referred to as "the land in this case") located in Jongno-gu Seoul OO-dong 000-0 (hereinafter referred to as "the land in this case"), but on August 1, 2006, transferred the land in this case and buildings on its ground (hereinafter referred to as "DDD") to DD (hereinafter referred to as "DD") for 2.1 billion won (the transfer price of the land in this case is 1.4 billion won), and DD transferred the land in this case to EE Construction Industry Co., Ltd. (hereinafter referred to as "E EE Construction") for 2.3 billion won on the same day.

B. On May 31, 2007, the Plaintiffs reported and paid each transfer income tax of KRW 11,082,530 for the transfer of the instant land, and the Defendants: (a) on December 1, 2010, on the ground that the instant land was judged to have been transferred directly from the Plaintiffs to EE Construction; (b) on December 1, 2010, the amount calculated by deducting KRW 70 million for the transfer price of a building on the ground from KRW 2.3 billion for the transfer price of the instant land and KRW 90,863,350 for the instant real estate from KRW 90,863,350 for acquisition tax and registration tax paid by DD; and (c) on the transfer price (each of KRW 754,568,325 for the instant real estate) of the Plaintiffs, the Head of E-ro Tax Office reported to EA; and (d) Defendant Samsung Tax Office imposed the Plaintiff’s transfer income tax of KRW 26570,5340 for the imposition (hereinafter referred to “instant”).

[Ground of Recognition] Facts without dispute, Gap evidence I, 9, 21, 22 (including paper numbers; hereinafter the same shall apply), Eul evidence Nos. 1 through 3, 5, 6

2. Whether the instant disposition is lawful

A. The plaintiffs' assertion

(1) On July 14, 2006, the Plaintiffs entered into a sales contract with DD on the instant land, and DDD was not well aware of the developments leading up to the transfer of the instant land to EDDD to E Construction. However, DD was aware of the payment of purchase price to the Plaintiffs as the sales price received from E construction, and the instant disposition that DD considered the Plaintiffs as the actual transferor for E construction was unlawful.

(2) On December 3, 2008, the Jongno-gu Administrator notified that 96,897,920 won, including registration tax, should be paid in relation to the acquisition of the instant land by DD, and at present, 135,850,840 won should be deducted from the cost required for the transfer of the instant land. Accordingly, the instant disposition is unlawful.

(b) Fact of recognition;

(1) The original trade name of DD was FF distribution corporation. The dissolution registration was made on December 2, 2003. On July 13, 2006, Plaintiff Lee Dong-B acquired 9.8% of the shares, Plaintiff rightsB acquired 0.2% of the shares, and Plaintiff Lee Dong-B was the representative director of the above company, Plaintiff rightsB was the director of the above company, and Plaintiff rightsB was the director of the above company, and completed each registration on the 14th of the same month.

(2) On July 20, 2006, the Plaintiffs resigned from the representative director and directors of each DDR, and HanG was appointed as directors on the same day, and each of the above resignation and office was registered on November 20, 2006.

(3) Upon filing a corporate tax return for the business year 2006, DDR reported and paid corporate tax of KRW 60,950,000 calculated with the transfer amount of the instant land, etc. as KRW 468,851. The tax base was reported and paid for the business year 2007, and it was closed ex officio on September 30, 2009 on the ground that no corporate tax was reported and no corporate tax was reported.

(4) ADDD changed its location on July 13, 2006 to 000 OOdong, Jongno-gu Seoul Metropolitan Government on November of the same year, but changed to 00-0 OOOOOtel officetels 1, Songpa-gu Seoul Metropolitan Government on November of the same year, and more than two lessors are reported to have no Plaintiff EA, deposit, and monthly rent.

(5) On July 14, 2006 between the plaintiffs and DDRs, the buyer column of the sales contract of this case is written as "(State), "GGG for the representative director of DDR." The sales contract of this case between DD and EE Construction entered as "BB representative director of BB in the seller column." The receipt of the purchase price of the land of this case issued for EE Construction was written as "(State) D representative director," but thereafter, DD, the seller's column entered as "D representative director," and the sales contract of this case was again prepared and kept as "DG for the representative director of DDR."

(6) The check paid in EE Construction with the purchase price of the instant land, etc. was confirmed to have been used by the Plaintiffs for the purpose of using the Plaintiff’s rightB’s redemption of the loan.

[Grounds for recognition] Gap's evidence Nos. 3, 17, 23, Eul's evidence Nos. 3 and 7, and the purport of the whole pleadings.

(1) First, we examine the argument that it is unfair to impose capital gains tax on the company since the purchase of the instant land from the plaintiffs and the sale thereof to EE Construction is BB. We examine the argument that it is unfair to impose capital gains tax from the transfer of the plaintiffs. The above facts are as follows: (a) the plaintiffs take over the stocks of DD which are corporations dissolved and registered; (b) the sales contract was concluded between the plaintiffs and DD as to the instant land on the date of the registration of the representative director; (c) BBB closed its business ex officio without any business activities except the purchase and sale of the instant land; (d) the lessor at the location of DD corporation appears to be the plaintiff A, deposit, and the monthly sales price was reported as non-existent; (d) the plaintiffs and DD's representative director at the time of the sale contract were indicated as the sale contract in the name of the parties to the transfer of DD, and there is no reason to view that DD's acquisition and sale price was different from DD's acquisition and sale price of the instant land.

(2) Next, as to the assertion that the head of Si/Gu should deduct the registration tax, etc. additionally imposed on DoD from the necessary expenses, there is no assertion or proof as to the fact that the plaintiffs paid the above registration tax, etc., as alleged by the plaintiffs, the circumstance alone, as alleged by the plaintiffs, cannot be deducted from the necessary expenses for the transfer of the real estate in this case, and therefore, the above assertion is without merit

(3) Therefore, the instant disposition is lawful, and the Plaintiffs’ above allegations are without merit.

3. Conclusion

Therefore, the plaintiffs' claim of this case against the defendants is dismissed in its entirety as it is without merit. It is so decided as per Disposition.