Early High Court Decision 2011J 0147 (Law No. 21, 2011)

It is difficult to recognize that the title trustee of the transferred house is only a title trustee.

In light of the circumstances where the transfer of a house was registered as a rental business operator and the transfer income tax was voluntarily reported, and where an objection was filed, it is difficult to recognize the assertion that income from the transfer of a house belongs to a third party and only the title trustee was merely a title trustee.

2011Guhap2621 Disposition of revocation of imposition of capital gains tax, etc.

Hongx

The superintendent of the tax office

August 31, 2011

October 26, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant revoked the disposition of imposition of capital gains tax of KRW 49,938,980 for the Plaintiff on August 1, 2010 (the Director's August 13, 2010 seems to be written in writing).

1. Details of the disposition;

A. On September 28, 2001, the Plaintiff completed the registration of ownership transfer for the instant housing on the grounds of sale as of July 9, 2001 with respect to Nos. 106, 107, 206, 207, 207, 306, 307, 406, and 407 (hereinafter “instant housing”) of Mayang-si on September 28, 2001, and HuA completed the registration of ownership transfer for the instant housing on October 31, 208 on the same day.

B. On June 1, 2009, the Plaintiff filed an application for reduction or exemption pursuant to Article 97-2 of the Restriction of Special Taxation Act (Special Cases of Reduction or Exemption of Transfer Income Tax on Newly-Built Rental Houses) with the Defendant having the acquisition value of KRW 80 million and the transfer value of KRW 280 million.

C. Accordingly, the Defendant needs to be a house that has not been occupied at the time of acquisition under Article 97-2 of the Restriction of Special Taxation Act. The Defendant determined that the instant house failed to meet the above requirements and notified the Plaintiff of KRW 49,938,980 for transfer income tax for the year 2008 (hereinafter “instant disposition”).

D. On December 22, 2010, the Plaintiff appealed to the Tax Tribunal, but the Tax Tribunal dismissed the request on February 21, 201.

[Ground of recognition] Facts without dispute, Gap evidence 1 to 8, Gap evidence 5-1, 2, Eul evidence 1 and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The actual owner of the instant housing is OB, and the Plaintiff is merely the trustee, and it is against the principle of substantial taxation to impose capital gains tax on the Plaintiff, which is merely the trustee, even though the Plaintiff did not transfer the instant housing or receive the capital gains tax.

(b) Relevant statutes;

Article 14 (Real Taxation)

(1) If the ownership of income, profit, property, act or transaction subject to taxation is merely nominal, and a third person to whom such ownership belongs exists, tax-related Acts shall apply to such person to whom such person actually belongs as a taxpayer.

(2) The provisions pertaining to the calculation of tax base in tax-related Acts shall apply to the actual income, profit, property, act or transaction, regardless of its title or form.

C. Determination

If a title truster transfers real estate to a third party and income from such transfer was attributed to a title truster, under the principle of substantial taxation under Article 14(1) of the Framework Act on National Taxes, if the title truster, the title truster, who is the subject of the transfer, does not become a taxpayer, but has the burden of proving that the title truster, who is the subject of the transfer, is only the subject of the transfer, and there is a person who has actually received such income (see, e.g., Supreme Court Decisions 96Nu6387, Oct. 10, 1997; 84Nu505, Dec. 11, 1984).

In this case, according to the evidence No. 1, the plaintiff could recognize the fact that he was registered as a rental business operator of the housing of this case on September 27, 2001, and as seen earlier, the plaintiff filed an application for reduction or exemption under Article 97-2 of the Restriction of Special Taxation Act while voluntarily reporting the transfer income tax, and when filing an objection to the defendant, the defendant did not assert the claim on title trust. In light of the circumstances, it is insufficient to recognize that Eul held the housing of this case under title trust only with the testimony of the witness HuA, and that the transfer act of the housing of this case and the income from the transfer was attributed to OB, and there is no other evidence to acknowledge this otherwise. Accordingly, the plaintiff's above assertion is without merit.

3. Conclusion

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