Seocho 208west 1729 (No. 26, 2008)

The legitimacy of the assertion that no title trust was made with respect to taxation by the actual owner related to title trust

There is no evidence to acknowledge the title trust in view of the source of funds to acquire real estate, details of provisional registration of real estate, subject of actual attribution of transfer proceeds, etc.

The contents of the decision shall be the same as attached.

1. The Defendant’s imposition of capital gains tax of KRW 238,969,680 against the Plaintiff on October 16, 2007 shall be revoked.

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

same as the entry.

1. Circumstances of the disposition;

A. The registration of ownership transfer was completed on May 15, 2002 in the name of Kim Jong-dong, Daejeon, 12 large 12 large 2,337.2 large 2, and on the share of 12 above Hong-dong, Hong-dong, 12 above, with respect to the share of 7073.624/7179.24 (hereinafter “each real estate of this case”) of the above Hong-dong, Hong-dong, 12 large 12 large 2,437.2 square meters, which is originally owned by the non-party corporation of this case (hereinafter “non-party corporation”).

B. On June 28, 2002, the Defendant acquired each of the instant real estate from the non-party company and entrusted it in the name of Kim○, but on November 24, 2005, on the ground that the Plaintiff transferred each of the instant real estate to Kim Young-young and did not report the income, the Defendant imposed KRW 238,969,680 on the Plaintiff on October 16, 2007 (hereinafter “instant disposition”).

C. On December 26, 2007, the Plaintiff filed an objection against the instant disposition and received a decision of dismissal. In other words, the Plaintiff filed an appeal with the Tax Tribunal on April 29, 2008, but received a decision of dismissal on September 26, 2008.

[Ground of recognition] Evidence No. 1, Evidence No. 4-1, and 2-2, the purport of the whole pleadings

2. Whether the disposition is proper; and

A. The plaintiff's principal

(1) A statement to the effect that there was no title trust

The plaintiff actually acquired each of the instant real estate from the non-party company, and the plaintiff only managed each of the instant real estate upon the request of the non-party Kim ○, a South-Nam, and purchased each of the instant real estate and did not have held title trust to the non-party Kim ○. Thus, the disposition of the instant real estate on the premise that the plaintiff was acting in title trust to the non

(2) A statement that the time of transfer has expired

Even if the Plaintiff held title trust of each of the instant real estate with the Kim Young-young, since the time of transfer did not arrive because the transfer price was not settled due to the failure to take over the collateral security obligation on each of the instant real estate and the obligation to return the deposit for lease, etc. which the transferee Kim Young-young agreed to acquire, the instant disposition based on the premise that the transfer price was settled on November 24, 2005 is unlawful.

(b) Related statutes;

It is as shown in the attached Form.

(c) Fact of recognition;

0. Acquisition, etc. of each of the instant real estates:

"(A) On May 15, 2002, the Plaintiff's wife Kim ○ and the non-party company entered into a sales contract (hereinafter "the sales contract in this case") with respect to the real estate in this case, which is the ownership of the Plaintiff, and each of the above real estate and the above Red ○○-23 Site 216.6m2,00,000 won, and the down payment KRW 200,000,000 on the date of the contract, and the remainder KRW 327,000,000,000 on June 28, 2002. (B) The down payment was made to the non-party company on May 15, 2002, KRW 200,000,000 from the purchase price in this case, KRW 327,200,000,0000,000,000 won, in lieu of the remainder of 3.28 billion won, the remainder was paid to the non-party 268.

(C) As seen earlier on June 28, 2002, each registration of ownership transfer was made in the name of Kim○, as seen earlier. On the same day, the obligor completed the registration of creation of a mortgage in the name of Kim○ and the maximum debt amount in the name of the State○ Bank Co., Ltd., the amount of KRW 3.9 billion. On October 2, 2002, the obligor registered the establishment of a mortgage in the name of Kim○ and the maximum debt amount of KRW 3.75 million.

(D) On June 12, 2003, each of the instant real estates was registered on June 11, 2003 under the Plaintiff’s name on the ground of trade reservation.

(2) Transfer of each real estate of this case

(A) On June 13, 2003, Kim Jong-young and Kim Young-young concluded a sales contract with the effect that the purchase price for each of the instant real estate shall be KRW 4.3 billion, but the down payment shall be KRW 50 million on June 16, 2003, the intermediate payment of KRW 150 million on June 20, 200, and the remainder of KRW 4.1 billion on June 20 of the same year, and the remainder of KRW 4.1 billion on each of the instant real estate shall be acquired by Kim Young-young as to each of the instant real estate, and the balance of money shall be paid on June 27, 2003, in lieu of the payment. In the event of provisional seizure on each of the instant real estate, the provisional registration under the Plaintiff’s name shall be succeeded to by Kim Young-young (this case’s transfer contract).

(B) After that, Kim Young-young paid the down payment of KRW 50 million, and on July 2, 2003, without paying the intermediate payment and the remainder, the provisional attachment of each of the instant real estate occurred by Kim Young-young on July 2, 2003, and Kim Young-young changed the terms of the instant transfer contract on July 7, 2003 and October 11, 2003, and then re-revision the contents as follows. Meanwhile, on February 11, 2004, the Plaintiff participated as a observer at the time of amending the instant transfer contract on July 7, 2003.

1) The transfer price of this case shall be changed to KRW 779,065,951; Kim Young-young shall be changed to KRW 779,065,951; KRW 20 million shall be paid up to February 12, 2004; KRW 80 million shall be paid up to February 16, 2004; KRW 229,065,951 shall be paid up to March 25, 2004; however, in order to secure this, the establishment registration of a mortgage with the maximum debt amount of KRW 250,00,000 shall be completed with respect to the land and building owned by Kim Young-dong, Seongbuk-gu, Seoul; KRW 67-44, and KRW 250,000 shall be paid up to KRW 4550,00,000,000 on March 25, 204; and where delay is delayed, the ownership of the land and building owned by the Gu-dong 6384, Dong-dong.

2) In addition to the payment of the transfer balance in this case, Kim Young-young shall pay 26,516,057 won, interest accrued until February 27, 2004, and 38,375,353 won, which has settled the substitute payment of property tax, etc. by March 25 of the same year, to Kim Young-young, and the amount omitted at the time of the settlement of accounts shall be adjusted accordingly.

(C) Accordingly, on February 27, 2004, Kim Young-young established the right to collateral security at KRW 250 million with respect to the above Ha○○○-dong 67-44 land and the above ground buildings, and on March 31, 2005, the right to collateral security was registered under the name of Song Young-dong 68-34 land and the above ground buildings designated by Kim Young-young.

(D) (1) On July 1, 2004, Kim ○○-dong, 67-44 on the land and its ground building, the above collateral security claims amounting to KRW 250 million, which was linked to the above collateral security claims, were transferred to Ma○-dong, and the supplementary registration was completed in the name of Ma○-dong.

2) Afterwards, Ma○○○○-dong 67-44 and the above ground buildings were voluntarily filed an application for auction at the Seoul Central District Court 2004Ma47148 on the basis of the above right to collateral security. On November 24, 2005, the above Ha○○-dong 67-44 and the above ground buildings were knocked at the auction procedure, and on December 23, 2005, 250 million won out of the successful bid price was distributed to Ma○-si.

(E) On the other hand, on February 27, 2004, the Plaintiff, on the grounds of sale on June 12, 2003, filed a supplementary registration with respect to the right to claim ownership transfer of each of the instant real estate with respect to ○○○○ Industry Co., Ltd., the transferee Kim Young-young.

(F) After that, while the transferee Kim Young-young failed to complete the registration of ownership transfer of each of the instant real estate due to the dispute over the settlement of the transfer price of the instant transfer contract between the transferor and the transferor, the State bank, the mortgagee of the instant real estate, filed an application for voluntary auction with the Daejeon District Court around 2004, around 28726, as to each of the instant real estate and the instant 68-23 site, and received a decision to commence the auction from the above court on August 3, 2004. After that, on the above auction procedure, on April 13, 2007, each of the instant real estate was adjudicated on April 13, 2007, and the State bank, the Co.,, Ltd. reported the claim of KRW 4,359,137,452 (principal principal2,911,85,685 + interest, etc. + KRW 1,447,283,767,98,98.

(3) A tax investigation, etc. on Kim ○-person

(A) On June 28, 2002, in relation to the original transfer contract of this case, the head of the tax office having jurisdiction over the Kim ○-person's domicile, deeming that Kim ○ acquired each of the instant real estate on June 28, 2002, and did not report the income even after the transfer gains accrued from transfer to Kim ○-young on November 24, 2005, the head of the tax office commenced a tax investigation on behalf of Kim

(B) In the process of the above tax investigation, Kim ○ stated to the effect that in purchasing each of the instant real estate from the non-party company, Kim ○ invested KRW 500 million or KRW 600 million, and that the Plaintiff, who is his form of sale, actually exercised the right to each of the instant real estate, was managing all of the instant real estate transactions through the said account by receiving and managing the leased income of each of the instant real estate from the building among the instant real estate to Kim ○-○ account

(C) In the process of the above tax investigation, it was found that the down payment of KRW 200 million related to the instant sales contract between Kim○-dong and the non-party company was paid for the sale price of the building on the ground of the 67-18 ground, Sung-dong, Sung-gu, Seoul.

(D) In addition, as seen earlier at the time of the above tax investigation, Kim ○ stated that the aforementioned collateral transfer was made to secure a part of the transfer price of the instant transfer contract in order to discharge a debt of approximately KRW 500 million borrowed from Ma○○○-dong, 67-44 land and the building on its ground to Ma○-do, and to discharge a debt of KRW 500 million borrowed from Ma○-si, Ma○-dong, Ma

(E) According to the details of the use of the above Agricultural Account (No. 3), each real estate leased to the above Kim○ account under the name of the above Kim○ account was transferred about 19 times to another bank account in the name of Kim○. At least 100 times, the Plaintiff Kim Young-young transferred to the bank account in the name of the Plaintiff at least 100 times. With respect to the instant transfer contract, the transferee Kim Young-young deposited KRW 39 million with the transfer proceeds, etc. on August 28, 2003; KRW 15 million on September 16, 2003; KRW 6 million on February 12, 2002; KRW 25,512,736 on February 24, 2004; KRW 185,516 billion on March 16, 2004; and KRW 300,000 on March 26, 200.

(f) On July 2007, the head of Ansan Tax Office determined that the actual exercise of the right to each of the instant real estate acquired each of the instant real estate from the non-party company and trusted it to Kim Young-young, and that a considerable portion of the rental income and transfer price deposited in the said account after August 2, 2002 was transferred to the Plaintiff’s bank account. On June 12, 2003, the Plaintiff registered the right to claim ownership transfer as seen above, but transferred the real estate to the industrial corporation designated by the transferee Kim Young-young on February 27, 2004 and completed the additional registration. In light of the fact that the Plaintiff participated as a witness at the time of the change of the content of the agreement related to the instant transfer contract, it was determined that the Plaintiff acquired each of the instant real estate from the non-party company and transferred it to Kim Young-young, and that the transferee notified the Plaintiff of the auction procedure on the land and the building under his jurisdiction over the transfer price as seen above, and that the Defendant transferred it to the Plaintiff’s auction procedure.

[Reasons for Recognition] Evidence Nos. 2, 3, 7, Evidence Nos. 4-1, 2, and 5-1 through 4, 2 through 5

4. Each entry of the evidence 6, 8, 9, Eul 5, 10-1, 2, Eul 7-1 through 3, and the purport of the whole pleadings;

D. Determination

(1) In general, the burden of proving the facts of taxation requirements in a lawsuit seeking revocation of taxation shall be imposed on the tax authority, but if it is revealed that the facts of taxation requirements are presumed in light of the empirical rule in the course of a specific lawsuit, it cannot be readily concluded that the other party is an unlawful disposition that fails to meet the taxation requirements, unless the other party proves that the facts in question were not eligible for application of the empirical rule.

(2) According to the above facts, it is difficult for ○○○○○○○ to pay KRW 200 million to the non-party company the sales price of the instant real estate owned by the ○○○○○○○○○○○○○, and the remainder of the sales price, as seen earlier, cannot be deemed that the money of the Plaintiff was used as the acquisition fund of each of the instant real estate, barring any special circumstance. ② The above provisional registration on each of the instant real estate was made under the name of ○○○○○○○○○○○○○○, an agreement on the transfer of the instant real estate under the name of ○○○○○○○○○○○○○○○○○○, which was difficult to acquire the ownership of the instant real estate under the name of ○○○○○○○○○○○○’s real title trust, based on the premise that it was difficult for the third party to obtain the ownership of each of the instant real estate under the name of ○○○○○○○ to transfer the instant provisional registration.

3. Conclusion

If so, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.