Seocho 2013west 0377 (Law No. 23, 2013)

The mere fact of title trust of real estate cannot be deemed to constitute fraud or other unlawful acts.

The title trust act alone cannot be deemed as a "Fraud or other unlawful act" if there was a deceptive scheme or other active act that makes it impossible or considerably difficult to impose and collect taxes, or it cannot be deemed as a "Fraud or other unlawful act as an unregistered resale."

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

2013Gudan12174 Revocation of Disposition of Imposing capital gains tax

II Kim

Head of Seocho Tax Office

November 15, 2013

December 13, 2013

1. On July 3, 2012, the Defendant revoked the disposition imposing OOO(including additional OOO(s) on the Plaintiff on July 3, 2012.

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

Cheong-gu Office

The same shall apply to the order.

1. Details of the disposition;

A. On September 8, 2003, the Defendant issued the instant disposition imposing the transfer income tax on the Plaintiff on July 3, 2012, on the ground that the Plaintiff: (a) on the ground that: (b) on September 8, 2003, the Plaintiff was also awarded one half of the shares of the OO-gun 29 Forest land No. 240,198 square meters (hereinafter “the instant land”); (c) on the part of Nonparty DaD, E, and Jeon F, but (d) on the part of four persons, the Plaintiff entrusted the title of OD with the name of OD; and (d) on October 30, 2003, the Plaintiff did not file a report on the transfer income tax on the pre-sale of the non-registration to E; and (d) on the ground that the Plaintiff did not report the transfer income tax on the acquisition of OOO in the capital gains tax for the year 2003.

B. On December 26, 2012, the Plaintiff filed an objection against the instant disposition, and filed an appeal with the Tax Tribunal on December 26, 2012, but was dismissed on April 23, 2013.

Facts that there is no dispute with recognition, each entry in Gap 1, 5-1, and 5-2, and the purport of the whole pleadings;

2. Summary of the plaintiff's assertion

A. The assertion that no title trust was made

The Plaintiff, after investing funds necessary for the purchase of real estate in EE, received a distribution of investment principal and profit after the land was sold, and there was no fact that the Plaintiff purchased the shares of the instant land and held a title trust with DaD. Therefore, the instant disposition based on the premise that the instant shares were trusted in title to DoD is unlawful.

(b) argument that the exclusion period has expired;

If a taxpayer of capital gains tax fails to report the tax base of capital gains tax by the filing deadline of the tax base return, the exclusion period of capital gains tax is seven years from the date on which the capital gains tax may be imposed. The capital gains tax following the transfer of shares in the instant land was imposed on July 3, 2012 after seven years from October 30, 2003, which was the date on which the transfer income tax could have been imposed. Accordingly, the instant disposition was imposed after the exclusion period expired and

3. Whether the disposition is lawful;

(a) Facts of recognition;

1) The Plaintiff, at the auction conducted in SDR, EE, and Jeon F together with Suwon District Court’s branch, invested approximately KRW OOO per capita of the instant land and agreed to be awarded a successful bid for OOO won, but the title of the land was agreed to be held in the name of DaD1. Accordingly, DaD completed the registration of ownership transfer on September 8, 2003 for the instant land on the ground of voluntary auction on August 20, 2003.

2) The E demanded that the Plaintiff, DaD, and NA (hereinafter “Plaintiff, etc.”) transfer the instant land to a third party and distribute transfer margin in proportion to the funds invested by the Plaintiff, etc., while E said that the instant land was transferred to the competent GG, the Plaintiff, etc. was distributed the remaining investment proceeds and profits after deducting transfer income tax, etc. from the cost of capital gains tax, etc., and the Plaintiff was paid the proceeds from the distribution of the remaining investment proceeds and profits to the Plaintiff, etc. by October 30, 2003. However, the fact is not that the instant land was not transferred, but that the provisional registration was completed on October 30, 2003 on the ground of a pre-sale agreement, and that the proceeds were paid to the Plaintiff, etc. by lending money.

3) Since 2003, DaD, the nominal owner of the instant land, imposed acquisition tax, property tax, etc. on the instant land, which was demanded several times to resolve the name of EE, and EE completed the registration of transfer of ownership on November 15, 2004 under its own name with respect to the instant land.

4) On August 1, 2011, the Defendant decided that the transfer income tax for DaD was transferred to EE and did not report the transfer income tax, and determined the transfer value as the transfer value, the acquisition value was the OO won including the successful bid price and the acquisition cost, the transfer time was the OO won of the transfer income tax for the year 2007, with the transfer time as of August 17, 2007.

5) After the notice of the disposition of imposition of capital gains tax as above was given, there was a conflict of opinion between EE and tax settlement, and during that process, EE filed a criminal complaint that forged or exercised each of the following sales contracts, and EE was prosecuted for the crime of forging or uttering of private documents. E is convicted of a judgment of conviction in the first instance (Seoul Central District Court Decision 2008Da7169), but E was pronounced not guilty in the second instance (Seoul Central District Court Decision 2009No2712), and the said judgment became final and conclusive.

○ Trading Date on September 30, 2003; buyer RedH, and OOO of the purchase price

1. The provisional registration shall be made in the name of a purchaser with respect to capital gains tax;

1. In principle, capital gains tax shall be borne jointly;

1. The requester shall issue a certificate of personal seal impression for sale to a person who requests it;

○ Trading Date: (a) August 16, 2007; (b) buyer EE; and (c) purchase price OOO

6) Upon filing an objection with the director of the Seoul Regional Tax Office against the disposition of imposition of the transfer income tax for the year 2007 imposed on him/her, he/she argued that “The instant land was jointly acquired by four persons, and as a result, transferred to E and received investment profit distribution (transfer margin) OO won, and thus, the disposition imposing the transfer income tax on the premise that the transfer price is an OOO won was illegal.” On September 9, 201, the said disposition was revoked on the ground that the claim was credibility.

Facts without any dispute arising in recognition, Gap 4, 6, 7 evidence, Eul 2, 4, and 6 respectively, and the purport of the whole pleadings

B. Determination

(1) As to the assertion that no title trust was held

According to the facts acknowledged earlier, the Plaintiff purchased the instant land in collaboration with ChoD, EE, and Jeon F, and acquired the ownership of the share, but received the amount equivalent to his share out of the transfer price by transferring the instant land to a third party under the name of ChoD, and agreed to receive the transfer registration under the name of a third party, and received the transfer transfer registration under such agreement. However, in the process of registering the transfer to a third party, the Plaintiff and ChoD, E, and Jeon F constituted a title trust agreement to purchase part of the instant land and trust the registration name to ChoD, even if the Plaintiff purchased part of each of the instant land, and paid OOOOOO which falls short of the amount invested by each person for each of the instant land, and the registration was made in direct manner under the name of a third party, and there is no change in the ownership ratio per person, as alleged by the Plaintiff, even if there is no change in the title trust agreement.

The plaintiff's assertion against this is rejected.

(2) As to whether the exclusion period has lapsed

(A) Whether the exclusion period is 10 years or more

1) The defendant's assertion

The Plaintiff sold unregistered shares in the instant land to ChoD without real name conversion. Since the Plaintiff’s act constitutes “where the taxpayer evades national taxes, is refunded, or deducted by fraudulent or other unlawful act” under Article 26-2(1)1 of the Framework Act on National Taxes, the exclusion period of capital gains tax on the instant land shall be ten years, which is the period prescribed under Article 26-2(1)1 of the Framework Act on National Taxes.

2) Determination

Article 26-2(1) of the Framework Act on National Taxes provides for the exclusion period of the imposition of national taxes, and Article 26-2(1) provides for ten years from the date on which the relevant national tax may be imposed if a taxpayer evades a refund or deducts such taxes by fraud or other unlawful acts (No. 1); seven years from the date on which the relevant national tax may be imposed if a taxpayer fails to file a tax base return within the statutory due date of return (No. 2); five years from the date on which the relevant national tax may be imposed if a taxpayer does not fall under subparagraphs 1 and 2 (No. 3). The legislative purpose of the above provision is to ensure prompt determination of tax law relations, in principle, the exclusion period of the imposition of national taxes is five years but it is difficult for the tax authority to find that there was an omission report or fraudulent act, and thus, it is difficult for the tax authority to determine that there was an unlawful act, such as fraudulent act or other unlawful act in title trust, and thus, it is difficult for the Plaintiff to do so without any tax evasion or other unlawful act.

The exclusion period for the imposition of capital gains tax on the instant land portion shall not be deemed ten years.

(B) Whether the exclusion period is expired

Article 26-2 (1) of the Framework Act on National Taxes provides that "national taxes shall not be imposed after the expiration of the period prescribed in the following subparagraphs," and subparagraph 2 provides that "if a taxpayer fails to file a return of tax base within the statutory due date of return, for seven years from the date on which the national tax is assessable." Article 12-3 (1) of the Enforcement Decree of the Framework Act on National Taxes provides that "the date on which the national tax may be assessed under Article 26-2 (3) of the Act shall be any of the following days," while Article 26-2 (1) of the Enforcement Decree of the Framework Act on National Taxes provides that "the date on which the national

Meanwhile, Article 105 (1) of the Income Tax Act provides that "the resident who transfers the assets under any subparagraph of Article 94 (excluding the resident who has reported a real estate transfer under Article 165) shall report the transfer margin calculated under Article 95 (1) to the chief of the district tax office having jurisdiction over the place of tax payment within 2 months from the end of the month in which the transfer date belongs under the conditions as prescribed by the Presidential Decree, and Article 110 (1) provides that the resident who has any transfer income in the relevant year shall report the transfer income to the chief of the district tax office having jurisdiction over the place of tax payment from May 1 to 31 of the year following

According to the above relevant Acts and subordinate statutes, the exclusion period of imposition of capital gains tax on the transfer of assets shall expire after June 1 of the following year from the time of transfer of the pertinent assets, which is the next day from the time at which the final return of tax base expires, and after the lapse of seven years therefrom. Meanwhile, the fact that the Plaintiff transferred the instant land and settled accounts of the transfer proceeds is as of October 30, 2003 is as seen earlier, and thus, at this time, the exclusion period of imposition of capital gains tax on the transfer of land in this case shall be deemed as the time of transfer of the instant land. Ultimately, the exclusion period of imposition of capital gains tax on the transfer of land in this case shall be the expiration date of May 31, 2004, which is the next day of June 1, 2004, which is the day after the final return of tax base for capital gains tax on the transfer of land in this case, which is the day

Therefore, the instant disposition taken on July 3, 2012 is null and void after the expiration of the exclusion period.

(3) Sub-decisions

Therefore, it is also permitted to seek revocation of the disposition of this case, which is seeking confirmation of nullity of the disposition of this case which is null and void. Therefore, the plaintiff's claim seeking revocation of the disposition

4. Conclusion

Therefore, the plaintiff's claim is accepted.