Cho High 2013Gu1461 ( November 14, 2013)

Since the transfer income tax was omitted by double contract, the exclusion period of 10 years should be applied.

In full view of the fact that capital gains tax was omitted due to a double contract, it is reasonable to deem that this constitutes a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes, and therefore, the exclusion period for imposition of 10 years shall apply.

The exclusion period of the imposition of national taxes under Article 26-2 of the Framework Act on National Taxes

2014Guhap20232 Revocation of disposition of imposing capital gains tax, etc.

Chapter AA

Head of Dong Daegu Tax Office

August 13, 2014

September 19, 2014

1. The plaintiff's claim is dismissed.

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

Cheong-gu Office

On December 22, 2012, the Defendant’s notice of decision on capital gains tax of ○○○○○○○○○ as to the Plaintiff is revoked.

1. Details of the disposition;

A. The plaintiff on December 29, 2005 each real estate listed in the separate sheet owned by him/her between A and A on December 29, 2005

(hereinafter referred to as "each real estate of this case") entered into a sales contract to sell it to ○○○○○○○ as follows, and the purchaser's name was entered in the sales contract as BB, which is the birth of the BA.

B. Meanwhile, the Plaintiff and the Category AA provided that the real estate listed in [Attachment 1 and 2 (hereinafter “1”) is “real estate”

C) Each sales contract (Evidence No. 3-2, No. 3-3) stating the purchase price of the real estate listed in ○○○○○, 3-4 (hereinafter referred to as “real estate”) as the purchase price of the real estate listed in ○○○○○, 3-4 (hereinafter referred to as “II real estate”) is separately prepared, and the purchaser obtained the seal of approval of ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and

C. On February 6, 2006, the Plaintiff made a preliminary return on the transfer value of each of the instant real estate to the Defendant based on the actual market price by making the transfer value of each of the instant real estate as ①, ② the sum of the purchase value under the check-in contract: ① the real estate ○○○○○○○○○○○○○○○○○○○○○)

D. On September 12, 2012 through October 20, 2012, the Defendant confirmed that the actual transaction price of each of the instant real estate is ○○○○○, and that the sales contract was completed under the name of the actual transferee or the name of the Chapter BB, and that the registration of ownership was completed, and notified the Plaintiff of the result of the tax investigation on November 5, 2012.

E. On December 10, 2012, the Defendant calculated gains from transfer as the actual transaction price of each real estate of this case (transfer value ○○○○○○) and notified the Plaintiff of the correction of the transfer income tax (including additional tax) for the year 2005, by applying 10 years from the exclusion period of imposition of national tax, on the ground that the Plaintiff committed fraud or other unlawful act at the time of filing a return of transfer income tax (hereinafter “instant disposition”).

F. The Plaintiff dissatisfied with the request for judgment on March 8, 2013. However, the Tax Tribunal rendered a decision to dismiss the request on November 14, 2013. Meanwhile, as to each of the instant real estate, the registration of ownership transfer was completed in sequence in the name of KimCC on the ground of sale on February 16, 2011, and on August 22, 2012, in the name of KimD and EE on the ground of sale.

Facts without any dispute, Gap's 1 through 4, 7, Eul's 1 through 6 (including each number), the purport of the whole pleadings, and the purport of the whole pleadings.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) Do and claim for exclusion period of imposition

At the time of the Plaintiff’s transaction of each of the instant real estate, a title truster, prepared a sales contract in advance under the name of the title truster B, a title trustee, and the Plaintiff’s YF failed to verify the details of the contract, leading the Plaintiff’s seal impression to a certified judicial scrivener office’s employee. As such, the Plaintiff was aware of the Plaintiff, and only reported the transfer income tax by attaching a certificate of approval signed by him/her, and did not actively act to reduce a burden on the transfer income tax, and at the same time, reporting by attaching a separate certificate of approval.

Moreover, in the case of real estate, the transfer income tax shall be paid based on the actual transaction price as it falls under the three houses in the order of ownership transfer registration. As such, ① there is no reason to fix the actual transaction price of real estate, and so long as the price is set above the standard market price, it cannot be seen as a contract contrary to the legal provisions, and ② In the case of real estate, the verification contract is not a false contract.

Therefore, since the Plaintiff’s failure to evade national taxes due to fraud or other unlawful act under Article 26-2(1)1 of the Framework Act on National Taxes, the Defendant’s application of the exclusion period for imposition of 10 years for the transfer income tax under the instant sales contract is unlawful

2) As to the invalidity of the instant sales contract

According to Article 4 (2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”), any change in the property related to real estate, which was made by a registration under a title trust agreement, is null and void. Since the Plaintiff completed the registration of ownership transfer of the instant real estate at the request of a title truster, a title trustee, in the future, Class BB, a title trustee, on the instant real estate, the transfer of each of the instant real estate is null and void. Accordingly, the instant

3) Illegal assertion regarding calculation of capital gains tax

A) Although the time of transfer of each real estate of this case is deemed to be January 20, 2006 when the registration of ownership was cancelled and the purchase price was fully liquidated, the disposition of this case, which calculated capital gains tax by deeming the date of transfer as the time of transfer on December 29 and December 30, 2005, which is the date of receipt of the registration of ownership transfer, as the time of transfer, is unlawful.

(B) In the case of real estate, the transfer income tax shall be paid based on the actual transaction price as it falls under three houses in the order of ownership transfer registration. (1) Since there is no incentive to set the actual transaction price of real estate, and so long as the price is set above the standard market price, it cannot be deemed a contract contrary to the law. (1) The sale price under the verification

C) (1) Although the value of each real estate in this case should be calculated in proportion to the actual transaction value based on the verification contract, it is unlawful to calculate the individual real transaction value of each real estate in this case pursuant to Article 100 (2) of the former Income Tax Act (amended by Act No. 7837 of Dec. 31, 2005; hereinafter the same shall apply), Article 166 of the former Enforcement Decree of the Income Tax Act (amended by Presidential Decree No. 19254 of Dec. 31, 2005; hereinafter the same shall apply), Article 48-2 (4) of the former Enforcement Decree of the Value-Added Tax Act (amended by Presidential Decree No. 1930 of Feb. 9, 2006; hereinafter the same shall apply) where the defendant's classification is unclear.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

1) Determination on the first argument

The legislative purpose of Article 26-2(1) of the Framework Act on National Taxes is to extend the exclusion period for the relevant national tax to 10 years in cases where there is an unlawful act, such as making it difficult to discover the taxation requirements of the national tax while the exclusion period of the national tax is five years in principle, or making it difficult for the tax authority to discover the fact of taxation requirements for the relevant national tax or forging false facts, and it is difficult for the tax authority to expect the exercise of the imposition right. Therefore, the "Fraud and other unlawful act" under Article 26-2(1)1 of the former Framework Act on National Taxes means a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect the tax, and it does not constitute a mere failure to file a tax return under the tax law or making a false tax return without accompanying any other act (see Supreme Court Decision 2013Du7667, Dec. 12, 2013).

The following circumstances revealed by the above facts of recognition and each evidence mentioned above, i.e., the Plaintiff

On December 29, 2005, the Plaintiff entered into the instant sales contract which sells all of the instant real estate to ○○○○○○. Although there was no separate agreement on the sales price of each of the instant real estate between the Plaintiff and DuA, the Plaintiff and DuA, even though there was no separate agreement on the sales price of each of the instant real estate, ① the sales price of the instant real estate to ○○○○○○○○○○, and the purchaser, ② the false agreement on the sales price of the instant real estate to ○○○○○○○, and the purchaser; ② the Plaintiff entered double the inspection of the head of ○○○○○○○, and the Plaintiff entered the approval of the head of ○○○, ○○, and then on February 6, 2006, the transfer price of each of the instant real estate to ○○○○○○○○○ upon the aggregate of the sales price under the inspection contract, it is reasonable to view that the Plaintiff’s assertion that the instant real estate was lawful, based on the premise that the Plaintiff’s sales contract was significantly lower or unlawful.

2) Judgment on the second argument

The main text of Article 88(1)3 of the former Income Tax Act (amended by Act No. 8144 of Dec. 30, 2006) provides that "transfer" in Article 4(1)3 of the same Act and in this Chapter means that an asset is actually transferred for consideration due to sale, exchange, investment in kind in a corporation, etc., regardless of the registration or enrollment of the asset," and does not require that a contract for sale, exchange, investment in kind, etc., which is the cause of the transfer of the asset for consideration, be legally effective. In addition, even if a contract is unlawful or unlawful because it is deemed invalid, a contract between the parties to the transaction, etc. is regarded as effective, and the seller, etc. receives and holds the purchase price, etc. as it is, the economic profit ultimately belongs to the seller, etc.; however, if the seller, etc. is unable to impose capital gains tax on transfer margin on the ground that the contract is null and void, etc., as a result of having the seller enjoy gains without taxation, etc., and thus, it goes against tax justice and equity (see Supreme Court en banc Decision 2014Du2614.

Meanwhile, according to the Real Estate Real Name Act, in the case of a so-called three-party registered title trust, a title trust agreement and registration based thereon are null and void, and as a result, the real estate held in title return to the seller’s ownership. Therefore, the seller can seek cancellation of the registration under the name that is null and void, but the same Act still remains valid after the lapse of the grace period since the seller and the title truster did not have any provision denying the validity of the sales contract between the seller and the title truster. Thus, the title truster may file

However, in cases where a title trustee arbitrarily sells or disposes of real estate held in trust, barring any special circumstance, the buyer acquires ownership effectively. Even if the title trustee disposed of the real estate held in trust from the title trustee, the seller may refuse to perform his/her obligation to return the purchase price in relation to the simultaneous performance, pursuant to the good faith principle or the main sentence of Article 536(1) of the Civil Act, until the title trustee restores his/her ownership (see, e.g., Supreme Court Decision 2001Da61654, Mar. 15, 2002).

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

After concluding the instant sales contract with a Chapter A, the title trustee prepared a sales contract under the name of BB, a title trustee, and completed the registration of ownership transfer in the future, upon the request of the Chapter BA. Thus, the Plaintiff completed the so-called three-party registered title trust; ② the Plaintiff received all payments from a Chapter A in accordance with the instant sales contract; and paid the transfer income tax on each of the instant real estate to the Defendant; ③ the title trustee, the title trustee, sold the instant real estate to KimCC on August 5, 201; and the ownership transfer registration was completed on February 16, 2011; and KimCC sold the instant real estate to KimD and EE on July 6, 2012; and the registration of ownership transfer was completed on August 22, 2012; thus, it is reasonable to deem that the Plaintiff still sold the instant real estate to the title trustee and the Plaintiff’s transfer of the real estate under each of the instant sales contract, without any exception, constitutes a transfer agreement between the Plaintiff and the title trustee and each of the instant real estate.

3) Judgment on the third argument

A) First of all, in calculating gains on transfer of assets, Article 98 of the Income Tax Act provides that the time of acquisition and time of transfer shall be the date of liquidation of the price of the relevant assets except in cases prescribed by Presidential Decree, such as cases where the date of liquidation is unclear. Article 162(1)2 of the Enforcement Decree of the same Act provides that "cases prescribed by Presidential Decree, such as cases where the date of liquidation of the price is unclear" under the former part of Article 98 of the same Act means the date of receipt of registration (including registration and a statement of change of the name) entered in the registry, registry, list, etc. before paying the price.

According to the above facts, the plaintiff shall request the purchase price in accordance with the special agreement under the contract of this case.

B. Before the intermediate payment was made, on December 29, 2005, the intermediate payment was made, and on December 30, 2005, the registration of transfer of real estate was completed on December 29, 2005, and on December 30, 200, the title trustee, the title trustee BB. Thus, the time of transfer of each real estate of this case is the 30th of the same month, the date of receipt of the registration was made on December 29, 2005, before the remainder payment was made. Accordingly, the Plaintiff’s above assertion that the time of transfer of each real estate of this case should be seen as January 20,

B) The following: (1) To recognize the transaction amount under the check contract as the actual transaction price:

According to the above facts, although the plaintiff and Category A entered into the sales contract of this case for the purpose of evading transfer income tax, they reported transfer income tax on the real estate of this case along with the above approval seal contract, and the plaintiff received the purchase price under the sales contract of this case from Category A, because it is clear that the purchase price under the verification contract of this case is not the actual transaction price of real estate. Therefore, as long as the amount exceeds the standard market price is stated, the above argument of the plaintiff is without merit (Meanwhile, in light of the purport that Article 96 (1) 6 of the former Income Tax Act provides the completion period which can be reported under the actual transaction price as the exception to the standard market price principle, and the purpose of the return of transfer income and the relation between the provisional return of transfer income tax base and the final return of transfer income tax, so long as the above provisional return or final return of transfer income tax base has been made under Article 96 (1) 6 of the former Income Tax Act, it is reasonable to view the tax amount different from the actual transaction price that the plaintiff has made a final return of transfer income tax base after 200 or final return.

C) Finally, Article 110(2) of the former Income Tax Act provides that where the transfer value or acquisition value is calculated based on the actual transaction value, and the land and buildings are acquired or transferred along with the land, etc., it shall be divided and entered, but where the distinction between the land and the building, etc. is unclear, it shall be calculated in accordance with the Presidential Decree by taking into account the standard market price at the time of acquisition or transfer, etc. In applying Article 100(2) of the Enforcement Decree of the same Act, if the distinction between the land and the building, etc. is unclear, it shall be calculated in accordance with the proviso of Article 48-2(4)

According to the above facts, it is reasonable to view that the Plaintiff’s disposal of each of the instant real estate is lawful in applying Article 100(2) of the Income Tax Act and Article 166(6) of the Enforcement Decree thereof, since the Plaintiff, while transferring each of the instant real estate collectively, did not consider any difference in the usage of each of the instant real estate or the standard market price, etc., and therefore, the classification of values between the instant real estate is unclear. Therefore, the Plaintiff

3. Conclusion

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