National Tax Service Review and Transfer 2011-026 ( November 24, 2011)

It is reasonable to view that an unregistered registration has been made in a state that an ownership was transferred by the former owner.

In light of the fact that a receipt for the purchase price of real estate was prepared in the name of the Plaintiff, and that a portion of the receipt received from a real estate purchaser in full and delivered it to the former owner and most gains from transfer, it is reasonable to deem that the real estate was sold in unregistered transfer, while it was transferred from

Article 104-3 of the Income Tax Act

2012Guhap787 Revocation of Disposition of Imposing capital gains tax

IsaA

Head of the High Tax Office

July 24, 2012

August 28, 2012

1. The plaintiff's claim is dismissed.

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

The defendant shall revoke the disposition of imposition of capital gains tax of 000 won for the year 2002 against the plaintiff on February 1, 2011.

1. Details of the disposition;

A. The registration of ownership transfer was completed on August 27, 200 on the ground of 141/233 shares (hereinafter collectively referred to as "each land of this case") among the 000 m223 m23 m2, such as the 000 m200 m2, Dong-dong, Seoyang-gu, Seoyang-gu, Mangdong-gu, Seoul Metropolitan City (O200 m2, 278 m2 of the same month).

B. The Defendant, and the Plaintiff purchased each of the instant land from DoD in 000 won, and did not register the transfer of ownership in the name of the Plaintiff, and then sold KRW 000 to CE without registering the transfer of ownership in the name of the Plaintiff, and imposed KRW 000 on February 9, 201 (hereinafter “instant disposition”).

C. The Plaintiff appealed and filed a request for examination with the Commissioner of the National Tax Service on August 30, 201, but the said request was dismissed on November 24, 201.

[Reasons for Recognition] The non-contentious facts, Gap evidence 3, Eul evidence 1, 2, and Eul evidence 1 and 5, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff is merely a broker fee of KRW 00,000, and the remainder is 000,000,000,000,0000,000,0000,000,0000,0000,0000,0000,0000,0000,0000,0000,0000,0000,0000,000,0000,000,0000,0000,0000,0000,0000,0000,0000,000,000,0000,000,000,0000,000,000,000,000,000,000,000,000,000,000,00,00,00.

B. Relevant statutes

The entries in the attached Table-related statutes shall be as follows.

(c) Fact of recognition;

(1) 원고는 2001. 초순경 고양시 일산동구 OO동에서 건설시행 및 분양대행업 등을 목적으로 하는 주식회사 QQ산업을 경영하면서， 정RR와 정RR 소유의 고양시 일산동구 OO동 0000 임야 15，938㎡(이 사건 각 토지가 속해 있었음)를 200 내지 500평씩 총 11필지로 가분할하여，이를 분양하기로 하는 분양계약을 체결하고，이에 따라 이 사건 각 토지 부분3)을 000원에 장DD에게 분양하였으며，2002. 3. 8. 장DD 앞으로 이 사건 각 토지에 관한 소유권이전등기가 각 마쳐졌다.

(2) The sales contract (Evidence No. 11, No. 6) signed on July 25, 2002 in the name of Doddd and ChoE with respect to each of the instant lands is written as the seller Dod, the buyer te, the purchase price of KRW 00, and the SSS consulting (representative) for the broker.

(3) However, around July 22, 2010, when filing a request for pre-assessment review with respect to the first imposition of capital gains tax imposed on Doddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddddd

(4) At the time of investigating the transfer income tax in the Pakistan, and the purchase of each of the instant lands at the Plaintiff’s request, the CE also stated that the purchase price was KRW 000, and that the purchase price of each of the instant lands was KRW 000, and that the Plaintiff received total receipts from the Plaintiff (Evidence 5-1 to 5, and Evidence 7), and that financial evidence was also submitted to the Plaintiff.

(5) The Plaintiff stated to the effect that the Plaintiff issued a receipt that he received KRW 000 as the purchase price from the ChoE at the time of re-audit of the transfer income tax in the Goyang tax book, but did not have any documentary evidence, and that he received KRW 000 in total from the ChoE, but did not make any purport.

(6) On the other hand, the Plaintiff purchased and owned 1,322 m2,00,000,000 OOdong-dong-gu, Busan Metropolitan City, and two parcels of land in the vicinity of each of the instant land from ER, and transferred the land to TT on September 10, 202, which is similar to the transfer to EE of each of the instant land.

[Based on Recognition] The overall purport of Gap evidence 2, Gap evidence 5-1 to 5, Gap evidence 6, 9, 10, 11, 16, and Eul evidence 1 to 10, and the whole purport of the arguments

D. Determination

(1) According to Article 104 (3) of the Income Tax Act (amended by Act No. 6781 of Dec. 18, 2002), unregistered transfer subject to capital gains tax means that a person who acquires assets provided for in Article 94 (1) 1 (to land or a building) and 2 of the same Act transfers assets without registering the acquisition of the assets. Such unregistered transfer constitutes a taxation requirement and, in principle, the defendant, who is the tax authority, bears the burden of proof as a matter of principle, but when determining whether the act of acquiring profits by participating in the sale between the transferor and the transferee is unregistered transfer or not, or is acting as an intermediary for transfer, the transaction process, and whether the actor has the rights and obligations as an independent trading party, whether the person has the authority to dispose of the assets arbitrarily, and whether the transferor has the authority to dispose of the assets under his name, and whether the amount of the transferred assets changes, etc., are taken over in consideration.

(2) The following circumstances revealed as to the instant case, i.e., (1) DoD did not enter into a sales contract with ChoE, and (2) DoD requested the Plaintiff to cancel the sales contract with respect to each of the instant land, and issued a certificate of seal impression for sale after preparing a sales contract with the Plaintiff to receive compensation amount of KRW 000,000, and (2) the Plaintiff appears to be KRW 000,000, not only the actual purchase price for each of the instant lands in light of the financial supporting documents presented by ChoE but also the Plaintiff’s statements on the receipts issued by the Plaintiff and the above receipts, and the Plaintiff’s actual purchase price for each of the instant lands appears to be KRW 13,00,000, not only the purchase price for each of the instant lands in light of the fact that the Plaintiff acquired 00,000,000, more than the purchase price for each of the instant lands in its own name, but also 00,000,000,000 won for each of the instant lands.

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.