Incheon District Court 2009Gudan2303 (29 April 29, 2010)

Any request for review of tax legality shall not be subject to an appeal litigation.

Since a request for review of tax legality does not directly affect the rights and duties of a taxpayer due to a non-adopted decision, the non-adopted decision itself cannot be an administrative disposition or a tax imposition disposition subject to an appeal litigation.

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

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1. The plaintiff's claim that is changed in exchange in the trial is dismissed.

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

The judgment of the first instance is revoked. The defendant confirmed that the disposition of imposition of capital gains tax of KRW 194,977,900 against the plaintiff on September 1, 2008 is null and void (the plaintiff changed the claim in the trial).

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1. Details of the disposition;

A. On February 24, 1998, the Plaintiff acquired a forest of 65-11 m2,156 m2,156 m2,000 m2,156 m2 (the changed to 565-5 m2,105 m2, 2002, Apr. 10, 2002; hereinafter referred to as the “instant site”), but transferred on March 30, 207, the Plaintiff filed a voluntary tax return with the Defendant on May 31, 2007, on the ground that the Plaintiff did not prove that he directly cultivated the said site as farmland, and the Defendant did not transfer the said site as non-business land, including the income tax of 261,924,349 m2,157 m2,157 m2,157 m2,208.

"C. Accordingly, the plaintiff is the actual owner of the land in this case and requested a pre-assessment review on June 23, 2008, because he used it as a arable land, but the defendant did not accept it on June 23, 2008, and on September 1, 2008, the plaintiff issued a disposition to impose a tax on the plaintiff on September 1, 2008, that the remaining 194,977,90 won after subtracting the already paid tax amount of KRW 31,203,67,90, which is the already paid tax amount from KRW 226,181,574, and the remaining 194,90, which is the tax amount of KRW 31,203,67,90, which is the already paid tax amount (hereinafter referred to as the "disposition in this case"). The fact that there is no dispute over [the grounds for recognition].

2. Whether the instant disposition is null and void

A. Summary of the plaintiff's assertion

The actual owner of the instant land is the FF school, and the Plaintiff was entrusted by the FF school. As such, under the substance over form principle, the taxpayer of capital gains tax is not the FF school, not the Plaintiff. Therefore, the instant disposition imposing capital gains tax on the Plaintiff is null and void due to significant and apparent defects.

B. Determination

Even if a person subject to imposition of capital gains tax is merely a title trustee, who is not a real owner of the transferred land, but merely a title trustee, the title of ownership on the registry at the time of transfer was made in the name of the title trustee, and the registration was not registered in the title trust relationship, barring any special circumstance, the tax authority, which is merely a third party, bound to believe the registration of ownership transfer on the above land and make a taxation accordingly, barring any special circumstance. Therefore, even if the said taxation is imposed on a title trustee who is merely a title trustee on the registry, such defect cannot be deemed as serious and obvious, and thus, the allegation that the said taxation becomes void is without merit (see Supreme Court Decision 97Nu13627, Nov.

According to the evidence No. 5 and No. 5 and No. 6, the Plaintiff may recognize the fact that the instant site was purchased in his/her name and completed the registration of ownership transfer under his/her name, but sold in his/her name, and the title trust relationship with the FF society, as alleged by the Plaintiff, was not registered in the register of the said site.

If so, even if the Plaintiff sold the instant site by holding it in the name of the FF church as alleged by the Plaintiff, barring any evidence that the tax authority knew or could have easily known such title trust relationship, it cannot be deemed that the instant disposition taken against the nominal owner on the registry of the said site was a significant and apparent defect.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

The plaintiff's claim that has been changed to exchange in the trial is dismissed as there is no reason.