National High Court Decision 2007west1455 (Law No. 21, 2007.09)

Where a joint businessman has not received capital gains from his/her equity ratio, the transfer income shall accrue.

Even if a joint businessman has not received capital gains from his/her share from the joint businessman, there is only a claim for profit distribution under the agreement against the other joint businessman, and the amount of capital gains shall be attributed to himself/herself

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

Article 14 (Real Taxation under Framework Act on National Taxes)

Article 94 (Scope of Transfer Income Tax)

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 1,884,722,580 for the Plaintiff on January 1, 2007 shall be revoked.

1. Circumstances of the disposition;

가. 중부지방국세청장은 소외 ☆☆종합건설 주식회사(변경 전 상호는 '★★산업개발 주식회사'이고, 이하 '소외 회사'라 한다)에 대한 세무조사 결과, 소외 회사가 2002. 1. 부터 8.경까지 성남시 분당구 정자동 15-1 대 2,043.9㎡' 같은 동 15-2 대 1,498.4㎡ 같은 동 15-3 대 1,995.9㎡(합계 면적 5,538.2㎡로, 이하 '이 사건 각 토지'라 한다)를 양도한 후 그 양도차익 53억 3,300만 원(양도가액 158억 8,400만 원, 취득가액 105억 5,400만 원)에 대한 신고를 누락한 사실을 확인하고, 2005. 2. 5. 소외 회사에게 2002 사업년도분 법인세 2,011,240,000원 등을 부과하는 한편, 위와 같은 조세탈루행위와 관련하여 소외 회사의 대표이사 한○○을 수원지방검찰청에 고발하였다.

B. As a result of the investigation into the above tax evasion act, ○○○ was indicted and tried for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax). On November 1, 2006, 1, 2006, the above court agreed to purchase each of the land of this case in the name of the non-party company and to distribute the profits of the joint business by entering into a joint agreement between ○○○ and the plaintiff, and 3 Hong Baltttal, and agreed to purchase each of the land of this case in the name of the non-party company, but upon transferring the right to acquire each of the land to the non-party 1, ○ transferred the right to acquire the land to the non-party 1, 2,90,000 won out of the transfer margin, ○○ was convicted of evading the transfer income tax of 2,000,000 won out of the transfer margin (two years and fine of 80,000,000 won). On the other hand, the director of regional tax office of each of this case was notified to the defendant 2.

C. Accordingly, on January 1, 2007, the Defendant rendered the instant disposition that determined and notified the Plaintiff of KRW 1,884,722,580, including the Plaintiff’s additional tax for the transfer income tax on the part of the year 2002 pertaining to the transfer of each of the instant land based on the said taxation data (the main tax amounting to KRW 1,073,916,000 + the additional tax amounting to KRW 810,806,580).

[Reasons for Recognition] Unsatisfy, Evidence Nos. 1 and 2, Evidence No. 11-1, Evidence Nos. 1, 2 and 3, the purport of the entire pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) In the first place, the actual acquisitor and the transferor of each land of this case are the non-party company and the non-party company actually belonged to gains from the transfer of unregistered resale. The plaintiff merely borrowed KRW 620 million to the non-party company at the time of the acquisition of each land of this case and received KRW 800 million including interest. Thus, in relation to the transfer of each land of this case, the transfer of each of the land of this case is against the principle of substantial taxation, regardless of imposing corporate tax on the non-party company and the comprehensive income tax based on interest income on the non-party company.

(2) Preliminaryly, even if the Plaintiff imposed capital gains tax on the Plaintiff on the ground of the joint agreement between the Plaintiff, Han○○○○, and one another, on April 30, 2002, following the transfer of each of the instant lands, the said joint agreement was cancelled when receiving KRW 1 billion equivalent to the Plaintiff’s share, and thus, it is unlawful to impose capital gains tax on the portion exceeding KRW 380,000 (1 billion - 620,000 won), which the Plaintiff actually acquired in connection with the transfer of each of the instant lands. In addition, the Plaintiff’s imposition of capital gains tax on the portion of KRW 380,000,000 (1 billion - 620,000,000), based on the promise that the non-party company becomes responsible for the transfer of each of the instant lands. The portion in excess is an independent effort of ○○, etc., and thus, the Plaintiff’s imposition of capital gains tax on the portion of KRW 380,000.

(b) Related statutes;

The entry of the relevant Acts and subordinate statutes is the same.

(c)a recognition;

(1) 소외 회사(이 사건 각 토지의 취득 및 양도 당시의 상호는 '★★산업개발'로, 대표이사는 한◇◇으로 되어 있었다)를 실질적으로 운영하던 한○○은 소외 ♥♥전자 주식회사 및 ♥♥이노텍 주식회사로부터 이 사건 각 토지의 매수자지위 선정 통보를 받고, 2001. 12. 11. 원고와 홍●●과 사이에 이 사건 각 토지를 매수하여 그 지상에 주상복합아파트/오피스텔을 신축ㆍ분양하기로 하면서 한○○은 이 사건 각 토지에 대한 매매계약의 체결 및 시공사 지급보증 등을 책임지고, 원고는 사업부지 계약금 5억과 제반경비 1억 원을, 홍●●은 추가 경비 1억 원을 제공하고 건축허가 등 인허가 업무를 책임지기로 하되, 위 사업과 관련한 지분을 한○○ 38%, 원고 40%, 홍●● 22%로 정하여 위 지분율을 적용한 새로운 법인을 설립하여 신설법인 명의로 사업을 시행하여 그 수익금을 지분비율대로 배분하기로 하는 공동사업약정을 체결하였다.

(2) 위 공동사업약정에 따라 원고는 2001. 12. 11. 한○○에게 합계 6억 2,000만 원가량을 송금하는 한편, 한○○ 등은 당시까지 신설법인이 설립되어 있지 않았던 관계로 소외 회사 명의로 2001. 12. 11. ♥♥전자 등으로부터 이 사건 각 토지를 계약금 5억 원을 포함한 합계 105억 5,400만 원에 매수하기로 하는 매매계약을 체결한 후 계약금을 지급하였다.

(3) Thereafter, around January 2002, ○○○ and the Plaintiff et al. determined that it was impossible to obtain construction permission on each of the instant lands with at least ten floors, and that there was no anticipated feasibility, and that there was no possibility of resale of each of the instant lands and distribution of profits to the Plaintiff et al. to adjust the agreement by allocating the profits to the Plaintiff et al.

(4) 이에 한○○ 등의 노력으로 이 사건 각 토지 중 2002. 1. 28. 정자동 15-2토지를 대금 41억 원에, 2002. 2. 6. 정자동 15-3토지를 대금 55억 8,400만 원에, 2002. 6. 18. 정자동 15-1토지를 대금 83억 3,400만 원에 ◎◎산업개발에게 매도하기로 하는 계약을 체결하였고(다만, 당초 이 사건 각 토지의 매수인이 소외 회사로 되어 있었던 관계로 매매계약서상의 매도인은 소외 회사로, 매수인은 위 15-2토지는 이토건설 주식회사로, 15-3토지는 박□□으로, 위 15-1토지는 박■■으로 되어 있다), 그 후 원매도인인 ♥♥전자 등의 협조 아래 2002. 4.과 8.경 이 사건 각 토지에 관하여 소외 회사와 ♥♥전 자 등과 사이에 이루어진 매매계약상의 매수인 명의를 ◎◎산업개발로 변경하면서 ♥♥ 전자 등과 ◎◎산업개발 사이에 이 사건 각 토지에 관한 매매계약서가 작성되었다.

(5) On April 30, 2002, when entering into a resale contract on each of the instant lands, Han○○○ received KRW 1 billion equivalent to the Plaintiff’s share of KRW 40 billion out of KRW 2.5 billion from the proceeds accrued from the resale of each of the instant lands, by August 29, 2002, on the one hand, the Plaintiff received KRW 80 million from the other company, after receiving cash custody certificates and promissory notes, which make it liable for all taxes and taxes.

(6) On May 13, 2009, ○○ was convicted of a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (tax) at the Suwon District Court after having been convicted of tax evasion in relation to each land of this case, and then appealed as Seoul High Court 2006No2609. However, on May 13, 2009, the above court was convicted of a violation of the capital gains tax of KRW 2.83 billion due to Defendant (Korean ○)’s share out of KRW 7.464 billion from the capital gains of each land of this case, even if there was a cause of KRW 2.83 billion from the transfer gains of each of the land of this case, but the said court was convicted of a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (However, in addition to the above crimes, the appellate court was sentenced to imprisonment for 5 years and a fine of KRW 80 million as it combines the above crimes (Fraud).

(7) The plaintiff knew that the actual transfer price of each of the lands of this case was not KRW 2.5 billion, but KRW 7.464 billion, in the criminal trial against the above ○○○○○, and accused him of embezzlement with the income equivalent to the plaintiff’s share of 1.7 billion from the Hong ○○○○○○. On the other hand, the plaintiff filed a criminal complaint against the above ○○○ who denied this, on the grounds that he embezzled the amount equivalent to the plaintiff’s share of 2.8 billion out of the gains on transfer of each of the lands of this case.

[인정근거] 갑 제3 내지 8, 10 내지 14, 17, 18, 19호증, 을 제4호증의 각 기재 또는 일부 기재, 증인 한○○의 일부 증언, 이 법원의 ♥♥전저 주식회사 ♥♥이노텍 주식회사에 대한 각 사실조회 결과, 변론 전체의 취지

D. Determination

(1) Judgment as to the plaintiff's main assertion

According to the facts found above, the plaintiff, Han○○, and Hong Han-si agreed to acquire each of the land of this case, and the sales contract was concluded in the name of the non-party company, which was actually operated by Han○○, not a new corporation under the above joint project agreement, and since it was difficult to implement the project in relation to the issue of building permission, etc., the actual purchaser and transferor of each of the land of this case shall resell the land under the agreement of three persons and distribute the profits in proportion to their ratio of shares. Therefore, the actual purchaser and transferor of each of the land of this case shall be the plaintiff, etc., not the non-party company, but the plaintiff, etc., who is the actual acquisitor and transferor of each of the land of this case, and the plaintiff, etc., who is the actual acquisitor of each of the land of this case, shall be deemed to be illegal disposition against the principle of substantial taxation, and the disposition of this case

(2) The plaintiff's conjunctive assertion No. 1

As seen earlier, inasmuch as ○○○ and Hong ○○ concluded a contract with the Plaintiff to purchase each of the instant lands under the name of the non-party company pursuant to a joint venture agreement and transferred the right to acquire each of the instant lands under the condition that only the down payment was made, and ○○, one joint business operator was fully liquidated the relevant transfer proceeds, even if the Plaintiff was unable to realize one’s own interests due to the Plaintiff’s failure to receive the transfer proceeds from the joint business operator who received the entire transfer proceeds, the Plaintiff has the right to claim a distribution of profits that may be entitled to claim a payment of the transfer proceeds according to his share of equity pursuant to a joint venture agreement against the other joint business operator who manages the transfer proceeds or the receipt of the transfer proceeds. Furthermore, the Plaintiff’s transfer proceeds from the transfer of each of the instant lands is not the time when the actual income is realized, but rather the time when the right becomes final and conclusive, and thus, takes a final determination principle of calculating the income of the pertinent year by deeming the income of each of the instant lands to have accrued from the said joint venture agreement between the Plaintiff and the Plaintiff.

(3) The plaintiff's conjunctive assertion 2

Although the Plaintiff, as alleged by the Plaintiff, delegated all the taxes, etc. on the transfer of each land of this case to Han○○ or the non-party company, as long as ○○ or the non-party company did not actually report on the delegation agreement, the Plaintiff may enforce liability for violation of the delegation agreement between the parties, apart from the fact that the Plaintiff may enforce liability for violation of the delegation agreement. Furthermore, the penalty tax as an administrative agent imposed in the event of a breach of duty in order to secure the fulfillment of the obligation under the tax law shall be borne by the Plaintiff who bears the obligation to report and pay the transfer income tax under the Income Tax Act. Furthermore, the aforementioned circumstance required by the Plaintiff cannot be said to be that there is no reason or there is no justifiable reason to deem that the disposition of this case, which was imposed by adding the additional tax in imposing the transfer income tax on each transfer of the land of

3. Conclusion

If so, it is so decided as per Disposition by rejecting the plaintiff's claim for objection case.