National High Court Decision 2008Du2838 (No. 25, 2008)

The legitimacy of the assertion that the title trust is one house for one household, since it falls under the title trust house.

Unless there are special circumstances, it is reasonable to deem that the Plaintiff constitutes two houses for one household, barring special circumstances, since the Plaintiff was awarded a successful bid in the discretionary auction procedure and completed the registration of transfer of ownership.

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

1. The plaintiff's claim is dismissed.

2. Litigation costs shall be borne by the plaintiff.

The Defendant’s imposition disposition of KRW 27,332,860 for the Plaintiff on January 5, 2008 shall be revoked.

1. Details of the disposition;

A. Upon receiving a successful tender on February 26, 1997 and completing the registration of ownership transfer on May 13, 1997, the registration of ownership transfer was completed on October 2, 2006 with respect to ○○○○○-dong 395-11 Ground ○○○○○-dong 395-11 (hereinafter “the instant housing”) for the purchase and sale (198,000,000 won) on August 2, 2006, but the Plaintiff submitted a preliminary return on capital gains tax to the Defendant on December 28, 2006 that the instant housing was acquired and transferred by the Plaintiff’s mother Kim○-dong, under the name of the Plaintiff, and constitutes tax-free housing for one household under the title trust.

B. On January 5, 2008, the Defendant did not have any evidence to support the assertion that the Plaintiff acquired and transferred the instant house under the name of the Plaintiff, which is an ASEAN, and furthermore, since title trust is null and void in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name, it is reasonable to deem that the instant house was acquired and transferred by the Plaintiff. However, at the time of the transfer of the said house, the Plaintiff owned ○○○○○ Dong 210-11 ○○nam 401 (hereinafter “the instant loan”) and is not subject to non-taxation of one house per one household on the ground that the Plaintiff owns it at the time of the transfer of the said house, it excluded from the initial preliminary return, and determined and notified the transfer income tax of KRW 27,332,860 for the year 206.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, Eul evidence 1, Eul evidence 1 and 2, the purport of the whole pleadings

2. Whether the instant disposition is lawful

When the voluntary auction of the instant house, which he had been residing in his former former domicile, was conducted on February 26, 1997, the said house was awarded a bid on May 13, 1997 and resided in the said house after completing the registration of ownership transfer on May 13, 1997. On August 2, 2006, the said house was transferred to Kim ○○ to cover KRW 198,00,000, and the registration of ownership transfer was completed on October 2 of the same year. Therefore, the instant house was owned by Kim ○ as a title trust movable property acquired and transferred in his name to the Plaintiff, and Kim ○ was not owned by another house. Accordingly, the instant house was not owned by the first household residing in the instant house until the time of moving to another place on September 201, and the said transfer meets the requirements for non-taxation for one household residing in 2 years, which was held for 3 years at the time of the said transfer, and the disposition to revert the instant house to the Plaintiff 2006.

B. Determination

(1) Comprehensively taking account of the overall purport of the pleadings in the statements in Gap evidence Nos. 1, 2, 3, 14, l or 4 (including provisional numbers), and Eul evidence Nos. 1 and 14 (including provisional numbers), the plaintiff can be acknowledged that the plaintiff was awarded the above house in the voluntary auction procedure for the house of this case on February 26, 1997 and completed the registration of ownership transfer on May 13, 1997 under the plaintiff's name, and thereafter transferred the above house to Male on August 2, 2006. Thus, it is reasonable to deem that the house of this case is the real estate owned by the plaintiff acquired and transferred by the plaintiff, except under special circumstances.

(2) As to this, the Plaintiff alleged to the effect that he purchased the instant house in the name of the Plaintiff, which had been residing in Kim ○○ as a whole, and held title trust. However, each of the entries in the evidence Nos. 4 through 16 (including the virtual number) is insufficient to recognize it, and there is no other evidence to acknowledge it

(3) Therefore, it is reasonable to deem that the Plaintiff owned the instant house other than the instant Ba at the time of the transfer of the instant house. Therefore, the Plaintiff deemed that the Plaintiff owned two houses owned by one household at that time, and thus excluded the application of capital gains tax exemption, and the Defendant’s disposition, which was notified, was lawful.

3. Conclusion

If so, the plaintiff's claim of this case is without merit, and it is dismissed. It is so decided as per Disposition.