Review Transfer 2013-0234 (Law No. 18, 2014)

Since the real estate has been transferred by fraud or other improper means, such as preparing a false transfer contract, the exclusion period for 10 years shall apply.

The plaintiff does not simply report under tax law or make a false report, but submits to the defendant a false contract for the transfer of the right to purchase land of this case, thereby making it impossible or considerably difficult to impose and collect taxes on the transfer of the right to purchase land of this case. Therefore, it is reasonable to deem that this constitutes fraudulent means or other illegal and active acts.

Article 26-2 of the National Tax Basic Act

2014Guhap21471

KimA

BB Director of the Tax Office

December 17, 2014

January 28, 2015

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

The Defendant’s imposition of capital gains tax of 2003 to the Plaintiff on July 4, 2013 is revoked.

1. Details of the disposition;

A. The plaintiff is the owner of AAA apartment B, 301 (hereinafter referred to as "A apartment"), located in ○○○○-gu, ○○○○○-si, and the plaintiff acquired the right to move into the housing site development zone (hereinafter referred to as "the right to move into the housing site of this case") executed by the head of ○○○-si (hereinafter referred to as the "head of ○○○-si") on February 6, 2003, when the AA apartment is subject to removal following the implementation of the AA citizen apartment rearrangement project (hereinafter referred to as "the project of this case").

B. On May 23, 2007, the Plaintiff entered into a sales contract with ○○○○ apartment complex No. 1102, 1803 (hereinafter referred to as “B apartment complex”) on the basis of the occupancy right of this case (hereinafter referred to as the “sale right of this case”), and on September 27, 2007, the Plaintiff transferred the sales right of this case to ○○○○○○○○○, and drafted a contract to succeed to the right.

C. Thereafter, on May 27, 2008, the Plaintiff calculated the transfer income tax amount (i.e., transfer income amount ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○”) and filed a final tax return on the transfer income tax for 2007. However, as the Plaintiff did not pay the said transfer income tax, the Defendant issued a notice of collection of the transfer income tax for the Plaintiff on October 1, 2008, and the Plaintiff paid the full amount of the said transfer income tax on March 5, 2012.

D. After that, on April 30, 2013, the Plaintiff filed an application for grievance with the Defendant to the effect that the sales right of this case is eE and KimF (hereinafter referred to as e-learning, etc.) and that the said transfer income tax should be revoked. The Defendant’s Committee on Taxpayer’s Rights and Interests accepted the Plaintiff’s petition for grievance on or around May 2013, and the Plaintiff notified the Plaintiff of the decision that applying the exclusion period for imposition of the transfer income tax for the non-report of the occupancy right of this case transferred to e-learning, etc. on September 30, 203.

E. Accordingly, on July 1, 2013, the Defendant issued a correction notice and refund to the Plaintiff that revoked the transfer income tax for the year 2007, and issued a correction notice to the Plaintiff on July 1, 2013, ○○○○○○○ (including additional tax) on the transfer of the right to move in of the instant case to the Plaintiff (hereinafter “instant disposition”).

F. The Plaintiff filed an objection on August 23, 2013, but was dismissed on October 2, 2013. On December 20, 2013, the Plaintiff filed a request for re-determination on December 20, 2013, but the Commissioner of the National Tax Service dismissed the request on March 18, 2014.

Each description of Gap's 1, 3, 4, Eul's 2 through 11, 14, and 15 (including each number), and the purport of the whole pleadings, as well as the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The Plaintiff’s mother’s born with H. The Defendant’s mother was transferred the instant occupancy right to 120 million won to CE, which is a female farmer, on September 2003, and the said purchase price was deposited into the ○○ bank account of the UG. On May 23, 2007, H acquired the instant purchase right by entering into the instant apartment sale contract with ○○ Corporation in the name of the Plaintiff on the basis of the Plaintiff’s occupancy right in the name of the Plaintiff, and CE, etc. sold the instant purchase right to 190 million won to the Plaintiff, etc. on September 27, 2007, and thereafter, the Plaintiff imposed capital gains tax in full on the Plaintiff’s name on the premise of the said resale.

Therefore, not only did the Plaintiff have no intent to evade tax, but also did not transfer the occupancy right of the instant case to the EE, and merely reported the transfer counterpart to the transfer counterpart as a leCC, etc. Therefore, it cannot be deemed a fraudulent or other unlawful act. Even if there was a fraudulent or other unlawful act, the actor has sold the ownership of the instant case to the EE, so the Plaintiff’s act of failing to report the transfer of the occupancy right of the instant case to the EE, which constitutes a case where the taxpayer under Article 26-2(1)1 of the Framework Act on National Taxes and Article 26-2(1)2 did not file a tax return by the statutory deadline for filing a tax return by the statutory deadline for filing a tax return. Accordingly, the disposition of the instant case against the Plaintiff after the expiration

2) The actual right holder of AA apartment and the occupancy right of this case is not the plaintiff but the plaintiff's mother, and the HH, the husband of the actual right holder, transferred the occupancy right of this case to the SiE, etc. around September 2003. The plaintiff was unaware of such fact, and the transfer price was deposited into the UG account. The instant disposition made by the defendant against the plaintiff who is not the actual right holder of the occupancy right of this case was unlawful in violation of the substance over form principle, and even if the plaintiff was aware of the above fact and there was an agreement between the plaintiff and UG on the title trust, the plaintiff who is the title trustee under the substance over form principle does not bear any tax liability.

(b) Related statutes;

It is as shown in the attached Table related statutes.

(c) Fact of recognition;

1) On May 8, 2002, the Plaintiff completed the registration of ownership transfer for AA apartment on the grounds of sale on the same day, and completed the registration of ownership transfer on October 12, 2002, ○○○-gu, ○○○○○○○ on October 11, 2002.

2) In addition, on October 11, 2002, the Plaintiff entered into a contract for demolition of obstacles with the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on the part of October 11, 202, and transferred KRW ○○○○○○○○○○ to the account of the

3) Thereafter, the Plaintiff was granted the right to move into the instant case on February 6, 2003. Around September 2003, HH, who was entrusted with the Plaintiff’s property management, entered into a contract on the transfer of the said right to move into the said right to move into the instant right to ○○○○○○○○○○○○○○○○○ upon obtaining the Plaintiff’s certificate of personal seal impression, and HE, etc. transferred the sum of KRW 120 million from September 16 to September 30, 2003 to the UG account.

4) On May 23, 2007, H entered into a sales contract on B apartment units based on the occupancy right of this case under the name of the Plaintiff with ○○ Construction, and CE, etc. were present at the Plaintiff on September 13, 2007.

Among them, a contract was concluded to transfer the right to sell this case in the name of the Plaintiff to leCC, etc.

5) On September 27, 2007, the certificate of completion of the real estate transaction contract under the name of the head of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○,

Facts without any dispute, Gap's 4 through 7 evidence, Eul's 11 through 14, 16 through 19 (including each number), and the purport of the whole pleadings.

D. Determination

1) Determination on the first argument

The legislative intent of Article 26-2(1) of the Framework Act on National Taxes is to promptly determine tax-related relations.

In principle, the exclusion period of the right to impose national taxes is five years, but it is difficult for the tax authority to discover that there is any unlawful act, such as making it difficult to discover the fact of taxation requirements on national taxes or forging false facts, so it is difficult for the tax authority to expect the exercise of the right to impose national taxes. Therefore, the exclusion period of imposition on the relevant national taxes is extended to 10 years. Therefore, the "Fraud and other unlawful act" under Article 26-2 (1) 1 of the Framework Act on National Taxes refers to a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes, and it does not constitute a mere failure to report under the tax law or a false report without accompanying any other act (see, e.g., Supreme Court Decisions 2013Du7667, Dec. 12, 2013; 2013Du10519, Oct. 11, 2013).

The following circumstances are revealed based on the above facts of recognition and each of the above evidence: ① Plaintiff

Since the Plaintiff’s right to move into the housing site development zone was acquired from the head of ○○○○○○, etc. on February 6, 2003 upon the enforcement of the instant apartment project, the Plaintiff entered into a contract with 120 million won to transfer the right to move into the housing site to ○○○○○, etc. on or around September 2003, which was delegated by the Plaintiff. (3) Nevertheless, the Plaintiff entered into a contract with ○○○○○, etc. to acquire the right to move into the housing site development zone based on the right to move into the housing site. (4) After the Plaintiff’s participation on September 27, 2007, the Plaintiff did not transfer the right to move into the housing site development zone to ○○○○○, etc., under the premise that the Plaintiff did not transfer the right to move into the housing site to ○○○, etc., and the Plaintiff did not transfer the right to move into the housing site to ○○, etc., under the name of 207.

2) Judgment on the second argument

The assertion that the substance over form principle is possible, and the burden of proof lies on a person who contests the taxation of the nominal owner (see, e.g., Supreme Court Decision 84Nu68, Jun. 26, 1984). In the event that the registration of ownership transfer has been completed with respect to real estate, the registrant is presumed to have acquired the ownership by legitimate procedures and causes, as well as on a third party, with respect to the former owner. As such, the fact that the registration is invalid by improper procedures and causes is the burden of proof for the claimant (see, e.g., Supreme Court Decision 2010Da21702, Jul. 22, 2010).

Therefore, with respect to whether the plaintiff's motherG is the actual right holder of the apartment complex and the right to purchase the apartment complex of this case, the following circumstances, which can be known by the health room, the above recognition, and each of the above evidence, i.e., the plaintiff completed the registration of ownership transfer of the apartment of this case on May 8, 2002, and entered into a contract for demolition of obstacles with Yongsan-gu Seoul Metropolitan Government on October 11, 2002 to remove the apartment of this case and receive compensation ○○○○○○○ on October 16, 2002. The plaintiff was paid the above compensation to his national bank account on September 16, 2002. ② The plaintiff directly attended the contract for the transfer of the right to purchase the apartment of this case and prepared a false contract on September 13, 2007 to the effect that he is the actual right holder of the right to purchase the apartment house of this case, and ③ the plaintiff's claim for sale of the right to purchase the apartment of this case and its related tax payment on behalf of the plaintiff.

3. Conclusion

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